In the aftermath of the 2020 election, legislators in statehouses around the country have proposed legislation that would disrupt the administration of our elections – often based on unfounded concerns over election security and so-called voter fraud.
Our team at the Voting Rights Lab has been closely tracking these alarming efforts to interfere in election administration – from threatening election administrators with criminal penalties to limiting the power that election officials have to carry out their jobs. Fifteen states enacted this type of legislation in 2021. And the trend is only picking up steam, with 198 bills currently active in 27 states.
One unexamined outcome is the disproportionate toll these attacks take on women. Nearly 80% of election administrators are women, leaving women to bear the brunt of legislative efforts aimed at undermining their authority as well as threats of violence from extremists.
In effect, a new set of laws have emerged creating, and responding to, an atmosphere of intimidation and penalization of election workers – leveled at a predominantly women workforce by overwhelmingly male statehouses. (On average, state legislatures nationwide are two-thirds male.)
Given women’s outsized role in operationalizing elections nationwide, attacks on election administrators disproportionately impact women, including:
- Bills that impose harsh criminal and civil penalties on election workers for doing their jobs – in many cases even threatening election officials with felony prosecution.
- Bills that strip experienced local election professionals of their authority, sometimes handing that power to state legislatures or other partisan actors.
- Angry citizens have so frequently leveled extreme threats at the predominantly women election force that some legislatures are currently considering bills that would create new protections for election workers, such as making election workers’ personal information confidential.
In the following analysis we take a deeper look at these three types of threats faced by election administrators.
CRIMINALIZING ELECTION OFFICIALS
In 2021, seven states enacted legislation penalizing election officials for doing their jobs. Some bills criminalized good faith job performance, while others forced election workers to risk criminal penalties for trying to regulate poll watcher behavior, or penalized election officials for acting to improve voter access in ways allowed under pre-existing law.
Notable 2021 laws include:
- Texas S.B. 1 created new felony-level punishments for election officials if they send an application for a mail ballot to someone who did not specifically request one; “solicit” someone to apply for one; or pre-fill any fields on a mail ballot application. Election officials have sued over the provision that criminalizes soliciting someone to apply for a mail ballot for fear they might inadvertently say something deemed criminal while trying to assist voters. S.B. 1 also threatens election officials with criminal charges if they remove or obstruct poll watchers who are disruptive or intimidating to voters.
- Iowa S.B. 413 creates a new felony offense for failing to perform official duties and a new aggravated misdemeanor for failing to perform required voter list maintenance.
- Kentucky H.B. 301, which was signed into law on March 24, threatens election officials with felony-level punishment for accepting private funding – including certain in-kind donations like furniture or space for voter registration activities.
- Wisconsin S.B. 939, which passed both chambers of the legislature, would make it more difficult for people to vote by mail. It would also add hurdles for early voters and election officials and threaten election officials with a felony if they didn’t follow part of the new law. Specifically, clerks could be charged with a felony if they gave a ballot to an early, in-person voter if that voter didn’t complete a full absentee ballot application first.
STRIPPING ELECTION OFFICIALS OF THEIR POWER
- Texas S.B. 1 stripped power from local election officials in several ways, often enforcing the new limitations with criminal penalties. Because of the new law, election officials cannot encourage people to vote by mail; generally cannot offer early voting outdoors or to people in their cars; cannot offer additional hours of early voting; have little ability to regulate poll watcher conduct; and can even be sued by anyone who claims they are violating election law. This may have been a response to changes adopted during the pandemic, when Harris County election officials used their existing discretion to facilitate safe voting, offering voting from cars, 24-hour voting, and outdoor voting.
- Georgia S.B. 202 allows a partisan majority of the State Election Board to take over local election boards by removing and replacing local election administrators (a process already begun in Fulton County). Because the law newly empowers the legislature to appoint the chair of the State Election Board, a majority of the board is beholden to the state legislature. Additionally, the bill eliminated county official discretion regarding drop box placement and availability, early voting days and hours, and the use of mobile voting sites.
- Iowa S.B. 413 eliminated county officials’ discretion to open early voting locations, prohibited them from proactively mailing absentee ballot applications to voters, and virtually eliminated their ability to use drop boxes. Finally, the new law threatens election officials with a vaguely defined crime for “interfer[ing]” with poll watchers, forcing officias to choose between allowing intimidating behavior by poll watchers or risking prosecution.
In 2022, we’ve seen 77 bills in 19 states that would strip authority from local election officials, or transfer power over elections to state legislatures. None of these bills have been enacted, although some are ready for governors to sign. For example:
- Arizona has been particularly active in this area. Perhaps the most extreme example is H.B. 2596, which would enable the legislature to simply reject the results of an election. Although that bill has not moved, the Senate passed S.B. 1012, which would allow the same legislature that chose the Cyber Ninjas to appoint someone to review the statewide voter registration list, decide if list maintenance is being done properly, and direct the cancellation of voter registrations.
- Wisconsin’s legislature passed two bills through both chambers that give it unprecedented power over the Wisconsin Election Commission, the state election authority. One bill allows a legislative committee to strip the Commission of funding and employees if the legislature disagrees with guidance it issues to local clerks, among other reasons. Another would give the legislature a direct role in implementing federal election administration guidance, directives, and funds. The legislature also passed a bill through both chambers that would allow anyone to sue local election officials for perceived election law violations without giving the Commission an opportunity to investigate and address the situation first.
RESPONDING TO THREATS TARGETING ELECTION OFFICIALS
Threats of violence directed at election workers around the country have become increasingly severe in the aftermath of the 2020 election. A 2021 Reuters investigation examined several such threats – typically from men directed at a predominantly female workforce:
“In Arizona, a stay-at-home dad and part-time Lyft driver told the state’s chief election officer she would hang for treason. In Utah, a youth treatment center staffer warned Colorado’s election chief that he knew where she lived and watched her as she slept.”
A separate ProPublica investigation also cited several threats against election administrators, in addition to many election workers being driven to leave their job under trying conditions:
“In Washoe County, Nevada, a mailed-in ballot for the state’s May primary had ‘SEALED WITH COVID SPIT’ written on the outside of the envelope. ‘We took that as a threat,’ said Deanna Spikula, the county’s registrar of voters. The ballot was not counted, and the envelope was turned over to police.”
According to a survey by the Brennan Center, one in six local election officials have personally experienced threats, and nearly eight in 10 local election officials feel that threats against them and their colleagues are on the rise. In response, some legislatures are considering bills that would create new protections for election workers, including increasing criminal penalties against those who threaten or harm election workers or make election workers’ personal information confidential. In 2022, 30 such bills have been introduced in 13 states.