Following the 2020 elections, the Department of Justice (DOJ) reported a significant increase in threats of violence toward individuals who administer elections, identifying in 2022 more than 1,000 reported incidents of threats and harassment targeting election workers for their work. This Legal Sidebar provides an overview of federal laws prohibiting threats and harassment against individuals responsible for administering elections, including election officials, workers, and volunteers at the federal, state, and local levels. The Sidebar also provides a brief overview of potential constitutional concerns related to the federal prosecution of individuals for threats and harassment to election workers, and considerations for Congress if it considers supplementing existing laws that address threats to election workers. (Further information on election worker safety and privacy policies, including a summary of relevant legislation introduced in the 118th Congress, can be found in this CRS Insight.)
Federal Law Overview
Constitutional Authority
The Elections Clause, in Article 1, Section 4, of the U.S. Constitution states, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators." While the states have primary responsibility for administering elections, the federal government maintains significant authority over elections including safeguarding the safety and integrity of congressional elections.
A parallel constitutional provision addressing presidential elections, Article II, Section 1, cl. 4, provides that Congress may determine the "time" of choosing presidential electors and the day the electors shall cast their votes, with that day being the same throughout the United States. This clause does not delegate to the states any power to prescribe the time, place, and manner of electors casting votes in a presidential election. The Supreme Court has held that "[t]he importance of [the presidential] election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated," and that "Congress, undoubtedly, possesses that power ... to preserve the ... institutions of the general government from impairment or destruction.... " Congress, exercising its authority under this provision, has enacted legislation establishing an Election Day. The power to appoint electors and how those appointments are made, however, belongs to the states under the Electors Clause, in Article II, Section 1, cl. 2.
Congress does not have general regulatory authority over state and local elections, but it may still exercise its power over such entities in several contexts. For example, Congress has the authority to prevent unconstitutional voting discrimination in a state or local election. Congress's authority to legislate regarding these various issues derives, in addition to its Article I powers, principally from the Fourteenth and Fifteenth Amendments. Relying on its Spending Clause authority, Congress might also condition the receipt of federal funds for state or local elections on compliance with federal requirements.
Relevant Statutes and Recent Cases Related to Violence Against Election Workers
Federal jurisdiction over election crimes, such as fraud, campaign finance, and voter suppression, can be established through a variety of means including, but not limited to: the presence of a candidate for federal office on the ballot in the election in question, interference with the work of election officials, interference with a constitutional right, or the use of interstate commerce in the accomplishment of a crime.
In contrast, the laws available to federal law enforcement for protecting election workers from threats and harassment depend on the defendant's conduct. Section 245 of Title 18 addresses interference in a broad array of federal protected activities including voting, and prohibits threats to poll watchers and election officials in Section 245(b)(1)(A). Additionally, Section 245(b)(4) provides protection from interference in voting or participating in other election activities on account of race, color, religion, or national origin. This provision prohibits using force or threat of force to willfully injure, intimidate, or interfere with "any person because he is or has been, or in order to intimidate such person ... from participating, without discrimination on account of race, color, religion or national origin" in voting or election activities. In 2024, individuals pleaded guilty to violating Section 245 for carrying out shootings that targeted the residences of election officials in 2022.
Section 245 requires the Attorney General, the Deputy Attorney General, the Associate Attorney General, or a specially designated Assistant Attorney General to certify that federal prosecution of a case is in the public interest and necessary to secure substantial justice. According to the Senate report accompanying legislation adding Section 245, the certification process was consistent with a federal practice that: "even where Federal law has been adopted, enforcement generally has been deferred to the States wherever possible." DOJ guidance further indicates that in practice, the certification process considers whether state or local law enforcement "either cannot or will not[] effectively enforce the applicable state law, thereby creating an overriding need for federal intervention" to uphold the public's interest in addressing election threats.
Other federal laws that may address threats or harassment of election workers or other government officials administering elections include:
Conduct by Government Officials
Some federal laws address interference with elections by those acting under the color of law. In addition to 18 U.S.C. § 245 discussed above, which applies "whether or not [the offender is] acting under color of law," laws specifically dealing with the conduct of government officials or those using government resources include:
Threats or Intimidation Against Voters
Federal laws that directly address the intimidation of voters may also be relevant in addressing crimes targeting election workers if voters were also intimidated from voting by the conduct at issue. For additional information, consult this CRS Legal Sidebar. Criminal laws addressing the intimidation of voters include, in addition to 18 U.S.C. § 245 and several other laws previously mentioned:
Relevant Laws of General Applicability
Section 875(c) of Title 18 prohibits, among other things, "transmit[ting] in interstate or foreign commerce any communication containing any threat" to kidnap or injure another person. The interstate or foreign commerce requirement of Section 875(c) restricts its use to cases where an individual has transmitted a communication containing a threat across state or country lines. Courts have held that the requirement that the threat be communicated in interstate commerce should be read "literally: once the communication crosses state lines, however briefly, the jurisdictional element is satisfied even if the sender and recipient are both located in the same state." As to the mental state requirement, the Supreme Court has not specified the mens rea for Section 875(c), though it has stated that while, "negligence is not sufficient" to support a conviction, the scienter requirement is satisfied "if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." In some recent cases, federal prosecutors have relied on 18 U.S.C. § 875(c) to address threats against election workers and other public officials. For example, in 2022, DOJ charged an individual under Section 875(c) for allegedly posting communications on the website Craigslist threatening election officials in Georgia. The individual pleaded guilty and was sentenced in November 2023 to two years in prison. Another individual pleaded guilty to two counts of making a threatening interstate communication under Section 875(c) for sending threatening voicemail messages to an election official and the Office of the Arizona Attorney General. He was sentenced to over two years in prison.
In July 2022, an individual was charged with making a bomb threat to an election official in violation of 18 U.S.C. § 844(e) and perpetrating a bomb hoax in violation of 18 U.S.C. § 1038(a), as well as communicating a threat in violation of 18 U.S.C. § 875(c). Section 844(e) provides criminal penalties of up to 10 years for an individual who "willfully makes any threat ... concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive." The individual pleaded guilty in August 2023 to one count of making a threatening interstate communication and was sentenced to three years and six months imprisonment in March 2024.
Other laws that have been used to charge individuals for threatening election officials include 47 U.S.C. § 223, which prohibits, among other things, knowingly making an interstate communication and transmitting "any comment, request, suggestion, proposal, image, or other communication which is obscene" with the intent to abuse, threaten, or harass another person; 18 U.S.C. § 2261A(1), which prohibits interstate stalking; and 18 U.S.C. § 2261A(2) which prohibits cyberstalking. Section 2261A(1) and (2) prohibitions require an intent to kill, injure, harass, or intimidate another person, and that the conduct "places that person in reasonable fear of the death of" or "serious bodily injury to" themselves, a family member, partner, or pet. The statute also forbids the same conduct if it "causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress."
Sentencing Guidelines
United States Federal Sentencing Guidelines enhancements may also be relevant in cases addressing threats against election officials. The Guidelines make adjustments to the base offense level for threat or harassment offenses on account the specific characteristics of the crime. For example, the Guidelines' official victim adjustment, § 3A1.2, provides enhancements of up to 3 to 6 sentencing levels "[i]f the victim was a government officer or employee; a former government officer or employee; or a member of the immediate family of a person described ... and the offense of conviction was motivated by such status.... "
First Amendment Considerations
In a criminal case where a defendant's speech is at issue, the constitutionality of the prosecution may depend on whether the speech is considered a "true threat." The First Amendment states, "Congress shall make no law ... abridging the freedom of speech.... " The First Amendment protects most forms of political hyperbole, safeguarding the public's interest in debate on issues that is, in the words of the Supreme Court, "uninhibited, robust, and wide-open, and that [] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." For example, threats of violence directed at government officials do not necessarily reach the level of a true threat. Conversely, true threats outside of constitutional protection can occur when the speaker "means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."
At times, law enforcement has struggled to assess when speech crosses over from protected political hyperbole to a true threat. The Supreme Court has held that a speaker does not need to intend to carry out violence to create a true threat. The speech may be proscribed when the speaker communicates the threat with the intent to place the victim in fear of bodily harm or death. For additional information on unprotected speech, see this CRS In Focus.
Considerations for Congress
The targeting of election workers and recent correlated poll worker shortages in several states may make the current federal statutory protections for election workers an area of interest for Congress. Several proposals introduced in the 118th Congress include provisions establishing additional federal offenses for crimes against election workers, expanding existing offenses to include more types of election workers and election activities, and increasing penalties (for example, H.R. 11/S. 1/S. 2344, S. 1318, H.R. 1583, H.R. 3130/S. 1487). Legislation introduced in the 118th Congress would also create or increase statutory privacy protections for election officials (for example, H.R. 11/S. 1 /S. 2344, S. 1318). Many of these proposals include some combination of related policies, such as increased funding for the safety of election workers.
Legal developments may also inform Congress's perception of the effectiveness of current criminal laws in deterring the harassment of election workers. In 2021, DOJ launched the Election Threats Task Force "to address the rise in threats against election workers, administrators, officials, and others associated with the electoral process." In August 2023, DOJ announced enforcement actions in thirteen cases. DOJ's increased focus in this area and resulting judicial decisions may help clarify how existing federal statutes apply to threats against election officials.