Undermining the Electoral Process
In addition to legislation making it more difficult for voters to cast ballots, last year saw a large uptick in bills that could enable partisan interference in election administration. The most extreme of these “election sabotage” bills would have allowed partisan officials to simply reject election results. Most of them targeted fair election administration in other ways, such as by targeting election officials with new criminal and civil penalties for facilitating voter access, placing partisan actors in charge of election administration and vote counting, and using partisan election reviews to call fair and accurate election results into question.
This surge of election sabotage legislation continues in 2022. As of January 14, legislators in 13 states have pre-filed or introduced 41 bills that would undermine the electoral process, some of which mirror the 2021 legislation in their purpose and scope and some of which bring new legislative tactics to the attacks on democracy.
Arizona leads the country with nine election sabotage bills introduced so far in 2022, with Virginia (6), Missouri (6), and New Hampshire (5) close behind.
Bills Initiating Biased Election Reviews
Thirteen bills have been introduced in seven states that would initiate biased reviews of elections and election results that lack transparency and fail to satisfy basic security, accuracy, and reliability measures. These bills are part of a movement in state legislatures to undermine faith in the electoral process.
Citizen-initiated audits. Three bills in three states have been introduced that would allow for citizens to initiate or conduct a review of election results or election practices without basic security measures for the ballots or clear guidelines for how results are reviewed. These “citizen audit” bills are a new twist on the growing trend of partisan election review legislation as well as legislation that empowers citizen enforcers in other contexts.
- One Missouri bill would allow any registered voter to request an audit of an election. If the request is signed by over 5 percent of registered voters in designated districts, an audit must be ordered and the election can’t be certified until after the audit is complete.
- One New Hampshire bill would impose a new requirement that digital images of all ballots cast by voters be made publicly available for any citizen to perform a “citizens audit” by comparing the official count to the ballot images. The audit would not be subject to any pre-written standards for accuracy or reliability. Making these ballots available would enable any person, including partisan actors and individuals acting in bad faith, essentially unchecked ability to produce their own misleading and manipulative analyses.
- One Virginia bill would allow for any elected official representing part of the jurisdiction, any election official in the jurisdiction, or any voter who presents a petition signed by 1,000 residents of the jurisdiction to initiate an audit of county or city election results.
The audit would not be subject to any pre-written standards for accuracy or reliability. The bill would mandate that the results of the audit be presented in a jury trial and would give the jury the power to overturn the election results without any mechanism for judicial review.
Audits of the 2020 general election. Eight bills in five states (Florida, New Hampshire, South Carolina, Tennessee, and Virginia), would require an audit of the 2020 general election statewide or in specific jurisdictions.
These kinds of bills, which also appeared in a number of states in 2021, show how the myth that the results of the 2020 election were fraudulent continues to grip state lawmakers.
Future audits of elections. Four bills in three states would require or authorize suspect audit processes in the future. This legislation uniformly lacks basic security, accuracy, and reliability measures, bestowing inordinate discretion on individuals, imposing no transparency requirements, or failing to mandate clear guidelines for how results are reviewed.
- One Missouri bill would establish a process for appointing an “Election Integrity Committee” tasked with implementing a random auditing system to examine the election results of two precincts drawn at random — one in the largest five precincts by number of votes received and one in the smallest one hundred precincts by number of votes received.
There are no pre-written, comprehensive standards for conducting the audits.
- One Washington bill would allow the legislature to authorize an independent forensic audit of a general election to be performed by a non-government entity.
The bill provides no pre-written, comprehensive standards for conducting the audit.
Bills That Would Establish New Prosecutorial Authority Related to Elections
Five bills have been introduced in three states that would expand law enforcement’s power over election-related matters. Three of these bills would create new law enforcement entities to investigate and prosecute voters for fraud. Our research shows that widespread voter fraud is vanishingly rare. While prosecuting any election fraud and crimes that might occur is undoubtedly a necessary and important state function, the context for these bills raises risks of the spread of disinformation about elections as well as the politicization and abuse of the process, including racially discriminatory prosecutions of voters and people providing ballot assistance.
- One Arizona bill would establish the Bureau of Elections within the governor’s office, a new agency empowered to enforce election law through investigations and by pursuing civil and criminal penalties.
- Another Arizona bill would expand the attorney general’s authority to investigate and prosecute alleged ballot collection (assistance with returning an absentee ballot on a voter’s behalf) in local and county elections and would allow any person to submit an anonymous complaint to the Election Integrity Unit of the Attorney General’s Office.
- Two New Jersey bills would require the attorney general to create a voting fraud task force in the Division of Criminal Justice, Specialized Crimes Bureau, to investigate and prosecute allegations of voting fraud.
The task force would comprise members of state, county, and municipal law enforcement agencies as determined by the attorney general.
In addition to these bills, Gov. Ron DeSantis of Florida has announced plans to use executive action to establish law enforcement bureaus to investigate and prosecute voter fraud. Other states, including Texas, have similarly diverted state resources to such efforts in the past but have failed to garner any evidence of widespread fraud.
Bills That Impose New Criminal or Civil Penalties on Election Officials
Sixteen bills have been introduced in eight states that would impose new criminal or civil penalties on election officials for actions taken to expand voter access or for minor mistakes during their ordinary course of conduct. After the 2020 election year, when election officials went to great lengths to protect voters from unprecedented challenges, these measures seek to chill election official conduct. They also contribute to an unprecedented wave of election officials leaving the profession. These resignations could further undermine elections if professional election administrators are replaced by more partisan actors.
- Four Arizona bills would allow election officials to be charged with felonies for unintended administrative mistakes.
- One Florida bill would create a new right of action that voters can use to sue local election officials who don’t abide by election law.
The private right of action risks being used as a weapon against election officials for benign mistakes.
- A proposed constitutional amendment in New Hampshire would establish five elected inspectors general positions to investigate and prosecute elections fraud as well as fraud by elected officials, including bribery, corruption, waste, abuse, and perjury.
If they find probable cause, the inspectors general could petition the court to remove that official from office, investigate the institution, or prosecute such instances of fraud. Standards like “waste” are vague and subject to a wide range of interpretations. An inspector general could use this power to initiate proceedings against election officials in bad faith.
- One Wisconsin bill would create a new felony criminal offense for a member of the state’s elections commission or its staff who fail to perform required voter list maintenance.
Bills That Politicize the Elections Process in Potentially Subversive Ways
Nineteen bills in seven states have been introduced that would politicize elections administration in a manner that could open the door to election sabotage. These bills are part of a trend that emerged in state legislatures in 2021 and represent the most direct attack on fair election administration.
The most serious of these bills establish processes that could be used to remove professional election officials and replace them with more partisan actors. Another category of these bills rearrange authority over specific aspects of election administration between different actors in a way that could be politically manipulative. And a final category of these bills would establish commissions or oversight agencies with vague or overbroad “election integrity” functions.
Removing election officials. Two bills in two states would establish processes that could be used to remove professional election officials and replace them with more partisan actors. These bills create a threat to all aspects of election administration because they open the door to partisan actors manipulating the mechanics of election administration in a specific local jurisdiction. Two similar laws were enacted in 2021 in Arkansas and Georgia.
- One New Hampshire bill would allow any voter to sue an election official and have them removed from office for failure to perform official election duties.
- One Virginia bill would create a process to allow the partisan State Board of Elections to unilaterally initiate removal proceedings for local election officials whom they deem to be “demonstrating less than satisfactory performance” for two years in a row.
There are no clear standards for the review or what standard or factors constitute “less than satisfactory performance.”
Transferring authority. Ten bills in three states would transfer authority over specific aspects of election administration to different actors in ways that could open the door to political interference. Legislation reassigning authority over a specific aspect of elections, such as voter roll maintenance, is not necessarily a sign of potential election sabotage in and of itself. But when a transfer of authority or the removal of an election official opens the door to more partisan influence over election administration or vote counting, more scrutiny is needed.
- An Arizona bill would allow local election officials to object to any settlement offer the secretary of state receives in election litigation, potentially complicating the office’s ability to resolve important lawsuits about voting access.
- Another Arizona bill would allow the legislature to appoint their own field personnel to review electronic voting systems on Election Day and recommend changes to voting procedures, duplicating existing statutorily mandated efforts by the secretary of state.
- Three Virginia bills would expand the State Board of Elections and transfer the power of appointing the state’s commissioner of elections from the governor to the State Board of Elections.
Because of the bill’s varied effective dates, it would allow the current governor to lock in control of the State Board of Elections and commissioner of elections for several years past the end of his term.
Election oversight commissions and agencies. Six bills in four states would establish commissions or other oversight agencies tasked with ambiguous or suspect “election integrity” functions. While the purpose or titles of these committees may not appear problematic on their face, the proliferation of such “election integrity” entities are fueled by the false pretense of voter fraud and perpetuate election denialism. These commissions could be used to justify further efforts to suppress voting or prosecute voters or election officials.
- One Missouri bill would establish a joint committee of the general assembly to be known as the “Joint Committee on Elections.”
This legislative committee would have the authority to appoint an “Election Integrity Committee” with the power to institute audits with weak procedural safeguards and “risk assessments” of local election official offices.
- One South Carolina bill would create the “Restore Election Integrity Now” joint legislative committee, which would examine a range of issues, including election security, accuracy of the election process, and uniformity of the elections process across the state.
- One Tennessee bill would create a joint legislative ad hoc election integrity subcommittee to review the results of county election officials’ forensic audits of the 2020 general election.