Following the 2020 election, vague allegations of widespread election irregularities appeared in states around the country. Despite a lack of evidence of those irregularities – even after states spent enormous resources searching for such evidence at the behest of partisan actors – some states are now responding with efforts to increase the involvement of criminal law enforcement in the election process.
To date, 14 states have introduced 46 bills that would escalate the investigation or prosecution of purported election crimes. And these bills represent just a portion of the 293 bills that would threaten voters, election officials and others with civil and criminal penalties. Among these bills are proposals to focus law enforcement resources on elections and even to create new law enforcement agencies specifically dedicated to investigating elections.
Perhaps the most well-known proposal is Florida’s newly-created “Office of Election Crimes and Security.” Governor DeSantis originally proposed the new office in his budget proposal prior to the 2022 legislative session, calling for an independent office made up of 45 investigators who would have the authority to investigate allegations of election law violations in any Florida county or municipality. Despite historical data showing that such violations are exceedingly rare in Florida and limited to isolated cases, the Governor proposed dedicating nearly $6 million dollars in taxpayer money toward this new office.
Many observers, including some legislators and Florida’s supervisors of elections, were skeptical of the need for the agency given that historical data and DeSantis’s own statements praising the administration of the 2020 election. DeSantis even asserted that Florida counties passed a post-election audit “with flying colors.”
Consequently, the Office of Elections Crime and Security that was ultimately approved by both chambers of the Florida legislature as part of Senate Bill 524 was a scaled down version of DeSantis’s original proposal. Rather than the 45 investigators in the DeSantis proposal, the new Office consists of 15 non-sworn investigators overseen by the Secretary of State. Per the new law, those investigators also lack general law enforcement powers, such as the ability to obtain search and arrest warrants. However, the law also requires the governor to appoint at least seven special law enforcement officers who do have general law enforcement powers – they will be assigned to districts throughout the state.
A similar proposal played out during the recently-completed Georgia legislative session. David Perdue, who is taking on Governor Brian Kemp in the state’s Republican gubernatorial primary, called on the legislature to create an “Election Law Enforcement Division” to investigate and enforce Georgia’s election laws. Perdue’s demand found some sympathetic ears in the Georgia House, where representatives introduced House Bill 1392. The bill charged the Georgia Bureau of Investigations (GBI) with identifying and investigating potential violations of election law in addition to granting the agency broad subpoena powers for election-related investigations. The legislature considered similar provisions in several other bills throughout the session. In the waning hours of the session’s final day, the Senate ultimately inserted similar language empowering the GBI to conduct election investigations into Senate Bill 441, which was subsequently sent to Governor Kemp for signature.
Several other states have seen legislative proposals or local action to increase the presence of criminal law enforcement in the election process:
- Texas – During the 2021 legislative session, the Texas Senate passed Senate Bill 1589, which would have created a system of state election marshals to investigate allegations of election law violations and to file criminal charges when appropriate. The bill would have also given election marshals the authority to impound election records or equipment during an investigation. The bill did not advance in the House, but we will be watching out for a similar proposal in 2023.
- Wisconsin – In Racine County, the sheriff recommended criminal charges against five state election commissioners for steps the Commission took to ensure voter safety during the 2020 election amid the COVID-19 pandemic. The attorney general swiftly denounced the sheriff’s actions as a “disgraceful publicity stunt,” and local prosecutors in three counties ultimately declined to seek charges against the commissioners.
- Pennsylvania – An elections omnibus bill that is still pending (House Bill 1800) includes several provisions to increase the presence of criminal law enforcement in the election process, including a proposal for new felony penalties aimed at election officials and individuals assisting voters and a requirement for the attorney general to appoint an independent prosecutor to review complaints of election law violations.
- New Jersey – Senate Bill 64 would require the attorney general to establish a voting fraud task force to investigate and prosecute crimes involving voting fraud.
Prior efforts to insert criminal law enforcement into the election process show that states undertaking such action often yield meager results, despite a large outlay of resources. For example, over the past several years, the Texas Attorney General’s office has housed an “Election Integrity Unit” dedicated to independently investigating and prosecuting alleged election offenses. In 2021, despite a $2.2 million budget, the unit managed to close just three cases.
Recent actions to increase the presence of criminal law enforcement in the election process are unnecessary given the rarity of election law violations. These efforts will more likely serve to intimidate marginalized voters and depress turnout and needed voter assistance opportunities for individuals who may be concerned about interacting with law enforcement when attempting to exercise their sacred right to vote. The substantial resources states are devoting to this needless increase in elections-related law enforcement would be much better spent if directed to support – rather than prosecute – local election officials, who often receive insufficient funding to serve their voters most effectively.