The Intersection of Election Security and Criminal Law: For the People Act of 2019
At the start of the first session of the 116th Congress, the House of Representatives introduced H.R.1, or better known as the For the People Act of 2019. The bill addresses concerns regarding access to ballot boxes, the influence of money in politics, and the lack of ethical constraints on public servants. It passed the House of Representatives earlier this year, and currently awaits action in the Senate. During that time since its passage, the For the People Act of 2019 and its specific provisions have been heavily scrutinized. An important component of the bill is its criminal provisions.
Section 1071 amends the criminal title of the United States Code – title 18 – by making it unlawful for anyone, regardless of whether acting under color of law, to “corruptly hinder, interfere with, or prevent another person from registering to vote” or prevent an individual from aiding another person in registering to vote. If convicted under this section, an individual could receive a fine, no more than five years imprisonment, or both. This provision raises an important question as to what the government would have to prove when charging a violation of this provision. For instance, what does “corruptly” mean in this circumstance? The Act does not define it. The word “corruptly” is prominently featured in 18 U.S.C. § 201, which relates to bribery and graft of public officials. Assuming that the government brings a case under this provision against an individual not acting under color of law, how would the government prove this specific mens rea when the individual had no public position? The Act, in an attempt to make sure that voter registration is not stalled or impeded with, does not provide an explanation.
Another provision that has caught attention is Section 1302, which prohibits and criminalizes deceptive practices in federal elections. Specifically, the provision prohibits an individual from knowingly communicating false statements about the time, place, or manner of voting, or qualifications to vote with the intent to impede or prevent another person from voting. For violating this prohibition, an individual could be fined not more than $100,000, receive not more than 5 years imprisonment, or both. This latter provision has caught the attention of the American Civil Liberties Union (“ACLU”), who wrote a letter asking members of the House of Representatives to vote “no” on the bill. The ACLU is specifically concerned that the provision would “encompass too much constitutionally protected speech.” In other words, the ACLU is concerned that the criminal penalties are not sufficiently tied to the government’s legitimate interests in protecting elections from deceptive practices.
A hallmark subtitle in the bill, named the Democracy Restoration Act of 2019, also intersects with criminal law. The purpose of the subtitle is to provide a mechanism for convicted felons to seek relief and restoration of their voting rights unless the individual is currently serving a felony sentence at the time of the election. The subtitle also requires each state and the federal government to notify a convicted felon of his voting rights upon the moment he receives his sentence only for a term of probation, or when he is released from the custody of the appropriate correctional facility. In essence, a defendant is notified at sentencing or after he has completed his sentence. This notification is also afforded to those who receive a misdemeanor conviction. A question that will no doubt be faced by states and the federal judiciary itself is – who is supposed to notify defendants of their voting rights? The act is not clear on who bears that responsibility. There are many possible players, to include the sentencing judge, the defendant’s own probation officer, and the warden of the correctional facility where the defendant is serving his sentence, who can be tasked with notifying a defendant of his voting rights.
At a time when the country is gearing up for another election, members of the House of Representatives have passed legislation to secure our elections, improve voter access to the polls, and improve the overall integrity of the election system. To do this, the For the People Act of 2019 includes the above-discussed criminal provisions in an attempt to carry out its central purposes. However, these criminal provisions raise important issues as to their constitutionality, feasibility, and enforcement. As members of Congress still debate as to how to secure our elections, only time will tell if these criminal provisions will ever become law.