Model Bill: State Accountability for Federal Interference at Polling Places

Federal law explicitly bans the deployment of federal troops or other armed federal agents to polling places. Specifically, 18 U.S.C. § 592 makes it a crime punishable by up to five years in prison to deploy federal “troops or armed men” to any location where voting is taking place or elections are being held, unless “such force be necessary to repel armed enemies of the United States.” Further, 18 U.S.C. § 593 makes it a crime for a member of the armed forces to prevent someone from voting “by force, threat, intimidation, advice, or otherwise,” or to interfere “in any manner with an election officer’s discharge of his duties.”

Federal law also bans other federal agents or employees from interfering in elections. 18 U.S.C. § 595 makes it a crime for “a person employed in any administrative position by the United States, or by any department or agency thereof,” to use their “official authority for the purpose of interfering with, or affecting” a federal election.

State legislators can reinforce these existing protections by creating state crimes that cover the same illegal activity, ensuring that multiple means of accountability exist if federal forces interfere in elections or intimidate voters and the Department of Justice refuses to prosecute. Federal officials are immune from state criminal prosecution only if they are engaged in conduct that is authorized by federal law and the official’s actions were “necessary and proper” in fulfilling their federal duties. Because 18 U.S.C. §§ 592, 593, and 595 make it a federal felony for troops and other federal officials to intimidate voters or interfere with elections, a member of the military or federal official engaging in this conduct could not do so under the authority of federal law, and their actions would not be “necessary and proper” in fulfilling their duties. They would therefore be subject to prosecution for violating similar state criminal laws.

To avoid potential Supremacy Clause issues, state duplicates of 18 U.S.C. §§ 592, 593, and 595 should mirror the language of those federal prohibitions as closely as possible, so that the only conduct that is prohibited is conduct that is already prohibited by federal law. State duplicates should also apply equally to both state and federal officials to avoid arguments that a state is targeting the federal officials for unfavored treatment.

Below is model language for a bill enacting state duplicates of the federal criminal prohibitions in 18 U.S.C. §§ 592, 593, and 595. States can strengthen these prohibitions further by including a civil enforcement provision that would allow any person aggrieved by prohibited conduct, election officials, or the state attorney general to sue for injunctive relief.

Section 1. Troops at polls.

Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the State of [insert state name] or the United States, orders, brings, keeps, or has under his or her authority or control any troops or armed persons at any place where an election is held, unless such force be necessary to repel armed enemies of the United States, and thereby acts in violation of federal law, shall be fined under this chapter or imprisoned not more than five years, or both.

This section shall not prevent any officer or member of the armed forces of the State of [insert state name] or United States from exercising the right of suffrage.

This section shall not apply to law enforcement whose presence is otherwise permitted by law, or who is responding to a request for assistance with regard to a specific emergency, allegation of criminal conduct, or disturbance that exists at the time the request for assistance is made, or to a request for assistance from the election officer with jurisdiction over the election in question.

Notwithstanding any other provision of law, the attorney general shall have concurrent jurisdiction with any district attorney in the prosecution of any offenses under this section.

The terms in this section shall be construed consistently with the same or similar terms in 18 U.S. Code § 592.

Section 2. Interference by armed forces.

Whoever, being an officer or member of the armed forces of the State of [insert state name] or United States, prescribes or fixes or attempts to prescribe or fix, whether by proclamation, order or otherwise, the qualifications of voters at any election in the state, and thereby acts in violation of federal law; or

Whoever, being such officer or member, prevents or attempts to prevent by force, threat, intimidation, advice or otherwise any qualified voter of the state from fully exercising the right of suffrage at any election, and thereby acts in violation of federal law; or

Whoever, being such officer or member, orders or compels or attempts to compel any election officer in the state to receive a vote from a person not legally qualified to vote, and thereby acts in violation of federal law; or

Whoever, being such officer or member, imposes or attempts to impose any regulations for conducting any election in the state, different from those prescribed by law, and thereby acts in violation of federal law; or

Whoever, being such officer or member, interferes in any manner with an election officer’s discharge of his or her duties, and thereby acts in violation of federal law—

Shall be fined under this chapter or imprisoned not more than five years, or both.

This section shall not prevent any officer or member of the armed forces from exercising the right of suffrage.

Notwithstanding any other provision of law, the attorney general shall have concurrent jurisdiction with any district attorney in the prosecution of any offenses under this section.

The terms in this section shall be construed consistently with the same or similar terms in 18 U.S. Code § 593.

Section 3. Interference by administrative employees of federal or state governments.

Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the State of [insert state name] or any agency or instrumentality thereof, in connection with any activity which is financed in whole or in part by loans or grants made by the United States or the State of [insert state name], or any department or agency thereof, uses his or her official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Member of the [insert state legislative chambers], and thereby acts in violation of federal law, shall be fined under this chapter or imprisoned not more than one year, or both.

This section shall not prohibit or make unlawful any act by any officer or employee of any educational or research institution, establishment, agency, or system which is supported in whole or in part by any state or political subdivision thereof, or by the District of Columbia or by any Territory or Possession of the United States; or by any recognized religious, philanthropic or cultural organization.

Notwithstanding any other provision of law, the attorney general shall have concurrent jurisdiction with any district attorney in the prosecution of any offenses under this section.

The terms in this section shall be construed consistently with the same or similar terms in 18 U.S. Code § 595.

Section 4. Civil enforcement of prohibitions on troops at the polls, interference by armed forces, and interference by administrative employees of federal or state governments.

A person aggrieved by a violation of this act may enforce the provisions of this act in a suit in equity. A prevailing plaintiff in such an action shall recover reasonable attorney’s fees, reasonable expert fees, reasonable litigation expenses, and all such fees as are appropriate as part of the costs to be determined by a court of competent jurisdiction.

An election officer holding an election or conducting a canvass may enforce the provisions of this act and may institute an action for equitable relief on behalf of an aggrieved person who is in the officer’s jurisdiction or is eligible to vote in the officer’s jurisdiction.

The attorney general may enforce the provisions of this act and may institute for the state, or in the name of the state, an action for equitable relief, including an application for a temporary or permanent injunction, restraining order, or other order.

A suit brought by an election officer holding an election or conducting a canvass or by the attorney general under this section does not preclude a contemporaneous private suit by an aggrieved person to enforce the provisions of this act.

The provisions of this act are cumulative and shall not be construed as restricting the application of any other law, including, but not limited to, the application of a criminal law to a person whose conduct violates this act.

Section 5. Severability.

If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part thereof directly involved in the controversy in which such judgment shall have been rendered. It is hereby declared to be the intent of the legislature that this act would have been enacted even if such invalid provisions had not been included herein.