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. Moreover, 18 U.S.C. § 241 makes it a crime for any person (including a government official) to conspire with another to intimidate any person exercising a constitutional right, including the right to vote. And 18 U.S.C. § 242 makes it a crime for any government official to willfully deprive a person of a constitutional right, including the right to vote.
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, 595, 241, and 242 make it a federal crime 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, 595, 241, and 242 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 officials at every level of government (state, local, and federal) to avoid arguments that a state is singling out the federal government for unfavored treatment.
The Brennan Center has developed model language for a bill enacting state duplicates of the federal criminal prohibitions in 18 U.S.C. §§ 592, 593, 595, 241, and 242. States can strengthen these prohibitions further by including a civil enforcement provision that would allow lawsuits for injunctive relief.
For more information about the bill, including its full text, please contact [email protected].
