Preventing Election Subversion Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 4064 To amend title 18, United States Code, and the Help America Vote Act of 2002 to provide increased protections for election workers and voters in elections for Federal office, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 22, 2021 Mr. SARBANES (for himself, Ms. LOFGREN, Ms. WILLIAMS of Georgia, Mr. ALLRED, and Mr. JONES) introduced the following bill; which was re- ferred to the Committee on the Judiciary, and in addition to the Com- mittee on House Administration, for a period to be subsequently deter- mined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend title 18, United States Code, and the Help Amer- ica Vote Act of 2002 to provide increased protections for election workers and voters in elections for Federal office, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Preventing Election 4 Subversion Act of 2021’’. 5 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 4064 IH SEC. 2. HARASSMENT OF ELECTION OFFICIALS PROHIB- 1 ITED. 2 (a) IN GENERAL.—Chapter 29 of title 18, United 3 States Code, is amended by adding at the end the fol- 4 lowing new section: 5 ‘‘§ 612. Harassment of election-related officials 6 ‘‘(a) HARASSMENT OF ELECTION WORKERS.—It 7 shall be unlawful for any person, whether acting under 8 color of law or otherwise, to intimidate, threaten, coerce, 9 harass, or attempt to intimidate, threaten, coerce or har- 10 ass an election worker described in subsection (b) with in- 11 tent to impede, intimidate, or interfere with such official 12 while engaged in the performance of official duties, or with 13 intent to retaliate against such official on account of the 14 performance of official duties. 15 ‘‘(b) ELECTION WORKER DESCRIBED.—An election 16 worker as described in this section is any individual who 17 is an election official, poll worker, or an election volunteer 18 in connection with an election for a Federal office. 19 ‘‘(c) PENALTY.—Any person who violates subsection 20 (a) shall be fined not more than $100,000, imprisoned for 21 not more than 5 years, or both.’’. 22 (b) CLERICAL AMENDMENT.—The table of sections 23 for chapter 29 of title 18, United States Code, is amended 24 by adding at the end the following new item: 25 ‘‘612. Harassment of election-related officials.’’. VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 4064 IH SEC. 3. PROTECTION OF ELECTION WORKERS. 1 Paragraph (2) of section 119(b) of title 18, United 2 States Code, is amended— 3 (1) by striking ‘‘or’’ at the end of subparagraph 4 (C); 5 (2) by adding ‘‘or’’ at the end of subparagraph 6 (D); and 7 (3) by adding at the end the following new sub- 8 paragraph: 9 ‘‘(E) any individual who is an election offi- 10 cial, a poll worker, or an election volunteer in 11 connection with an election for a Federal of- 12 fice;’’. 13 SEC. 4. RESTRICTIONS ON REMOVAL OF LOCAL ELECTION 14 ADMINISTRATORS IN ADMINISTRATION OF 15 ELECTIONS FOR FEDERAL OFFICE. 16 (a) FINDINGS.—Congress makes the following find- 17 ings: 18 (1) Congress has explicit and broad authority to 19 regulate the time, place, and manner of Federal elec- 20 tions under the Elections Clause under article I, sec- 21 tion 4, clause 1 of the Constitution, including by es- 22 tablishing standards for the fair, impartial, and uni- 23 form administration of Federal elections by State 24 and local officials. 25 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 4064 IH (2) The Elections Clause was understood from 1 the framing of the Constitution to contain ‘‘words of 2 great latitude’’, granting Congress broad power over 3 Federal elections and a plenary right to preempt 4 State regulation in this area. As made clear at the 5 Constitutional Convention and the State ratification 6 debates that followed, this grant of congressional au- 7 thority was meant to ‘‘insure free and fair elec- 8 tions’’, promote the uniform administration of Fed- 9 eral elections, and ‘‘preserve and restore to the peo- 10 ple their equal and sacred rights of election.’’. 11 (3) In the founding debates on the Elections 12 Clause, many delegates also argued that a broad 13 grant of authority to Congress over Federal elections 14 was necessary to check any ‘‘abuses that might be 15 made of the discretionary power’’ to regulate the 16 time, place, and manner of elections granted the 17 States, including attempts at partisan entrenchment, 18 malapportionment, and the exclusion of political mi- 19 norities. As the Supreme Court has recognized, the 20 Elections Clause empowers Congress to ‘‘protect the 21 elections on which its existence depends’’, Ex parte 22 Yarbrough, 110 U.S. 651, 658 (1884), and ‘‘protect 23 the citizen in the exercise of rights conferred by the 24 Constitution of the United States essential to the 25 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 4064 IH healthy organization of the government itself’’, id. at 1 666. 2 (4) The Elections Clause grants Congress ‘‘ple- 3 nary and paramount jurisdiction over the whole sub- 4 ject’’ of Federal elections, Ex parte Siebold, 100 5 U.S. 371, 388 (1879), allowing Congress to imple- 6 ment ‘‘a complete code for congressional elections’’. 7 Smiley v. Holm, 285 U.S. 355, 366 (1932). The 8 Elections Clause, unlike, for example, the Commerce 9 Clause, has been found to grant Congress the au- 10 thority to compel States to alter their regulations as 11 to Federal elections, id. at 366–67, even if these al- 12 terations would impose additional costs on the 13 States to execute or enforce. Association of Commu- 14 nity Organizations for Reform Now v. Miller, 129 15 F.3d 833 (6th Cir. 1997). 16 (5) The phrase ‘‘manner of holding elections’’ 17 in the Elections Clause has been interpreted by the 18 Supreme Court to authorize Congress to regulate all 19 aspects of the Federal election process, including 20 ‘‘notices, registration, supervision of voting, protec- 21 tion of voters, prevention of fraud and corrupt prac- 22 tices, counting of votes, duties of inspectors and can- 23 vassers, and the making and publication of election 24 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 4064 IH returns’’. Smiley v. Holm, 285 U.S. 355, 366 1 (1932). 2 (6) The Supreme Court has recognized the 3 broad ‘‘substantive scope’’ of the Elections Clause 4 and upheld Federal laws promulgated thereunder 5 regulating redistricting, voter registration, campaign 6 finance, primary elections, recounts, party affiliation 7 rules, and balloting. 8 (7) The authority of Congress under the Elec- 9 tions Clause also entails the power to ensure en- 10 forcement of its laws regulating Federal elections. 11 ‘‘[I]f Congress has the power to make regulations, it 12 must have the power to enforce them.’’. Ex parte 13 Siebold, 100 U.S. 371, 387 (1879). The Supreme 14 Court has noted that there can be no question that 15 Congress may impose additional penalties for of- 16 fenses committed by State officers in connection 17 with Federal elections even if they differ from the 18 penalties prescribed by State law for the same acts. 19 Id. at 387–88. 20 (8) The fair and impartial administration of 21 Federal elections by State and local officials is cen- 22 tral to ‘‘the successful working of this government’’, 23 Ex parte Yarbrough, 110 U.S. 651, 666 (1884), and 24 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 4064 IH to ‘‘protect the act of voting . . . and the election 1 itself from corruption or fraud’’, id. at 661–62. 2 (9) The Elections Clause thus grants Congress 3 the authority to ensure that the administration of 4 Federal elections is free of political bias or discrimi- 5 nation and that election officials are insulated from 6 political influence or other forms of coercion in dis- 7 charging their duties in connection with Federal 8 elections. 9 (10) In some States, oversight of local election 10 administrators has been allocated to State Election 11 Boards, or special commissions formed by those 12 boards, that are appointed by the prevailing political 13 party in a State, as opposed to nonpartisan or elect- 14 ed office holders. 15 (11) In certain newly enacted State policies, 16 these appointed statewide election administrators 17 have been granted wide latitude to suspend or re- 18 move local election administrators in cases where the 19 statewide election administrators identify whatever 20 the State deems to be a violation. There is no re- 21 quirement that there be a finding of intent by the 22 local election administrator to commit the violation. 23 (12) Local election administrators across the 24 country can be suspended or removed according to 25 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 4064 IH different standards, potentially exposing them to dif- 1 ferent political pressures or biases that could result 2 in uneven administration of Federal elections. 3 (13) The Elections Clause grants Congress the 4 ultimate authority to ensure that oversight of State 5 and local election administrators is fair and impar- 6 tial in order to ensure equitable and uniform admin- 7 istration of Federal elections. 8 (b) RESTRICTION.— 9 (1) STANDARD FOR REMOVAL OF A LOCAL 10 ELECTION ADMINISTRATOR.—A statewide election 11 administrator may only suspend, remove, or relieve 12 the duties of a local election administrator in the 13 State with respect to the administration of an elec- 14 tion for Federal office for inefficiency, neglect of 15 duty, or malfeasance in office. 16 (2) PRIVATE RIGHT OF ACTION.— 17 (A) IN GENERAL.—Any local election ad- 18 ministrator suspended, removed, or otherwise 19 relieved of duties in violation of paragraph (1) 20 with respect to the administration of an election 21 for Federal office or against whom any pro- 22 ceeding for suspension, removal, or relief from 23 duty in violation of paragraph (1) with respect 24 to the administration of an election for Federal 25 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 4064 IH office may be pending, may bring an action in 1 an appropriate district court of the United 2 States for declaratory or injunctive relief with 3 respect to the violation. Any such action shall 4 name as the defendant the statewide election 5 administrator responsible for the adverse ac- 6 tion. The district court shall, to the extent prac- 7 ticable, expedite any such proceeding. 8 (B) STATUTE OF LIMITATIONS.—Any ac- 9 tion brought under this subsection must be 10 commenced not later than one year after the 11 date of the suspension, removal, relief from du- 12 ties, or commencement of the proceeding to re- 13 move, suspend, or relieve the duties of a local 14 election administrator with respect to the ad- 15 ministration of an election for Federal office. 16 (3) ATTORNEY’S FEES.—In any action or pro- 17 ceeding under this subsection, the court may allow 18 a prevailing plaintiff, other than the United States, 19 reasonable attorney’s fees as part of the costs, and 20 may include expert fees as part of the attorney’s fee. 21 The term ‘‘prevailing plaintiff’’ means a plaintiff 22 that substantially prevails pursuant to a judicial or 23 administrative judgment or order, or an enforceable 24 written agreement. 25 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 4064 IH (4) REMOVAL OF STATE PROCEEDINGS TO FED- 1 ERAL COURT.—A local election administrator who is 2 subject to an administrative or judicial proceeding 3 for suspension, removal, or relief from duty by a 4 statewide election administrator with respect to the 5 administration of an election for Federal office may 6 remove the proceeding to an appropriate district 7 court of the United States. Any order remanding a 8 case to the State court or agency from which it was 9 removed under this subsection shall be reviewable by 10 appeal or otherwise. 11 (5) RIGHT OF UNITED STATES TO INTER- 12 VENE.— 13 (A) NOTICE TO ATTORNEY GENERAL.— 14 Whenever any administrative or judicial pro- 15 ceeding is brought to suspend, remove, or re- 16 lieve the duties of any local election adminis- 17 trator by a statewide election administrator 18 with respect to the administration of an election 19 for Federal office, the statewide election admin- 20 istrator who initiated such proceeding shall de- 21 liver a copy of the pleadings instituting the pro- 22 ceeding to the Assistant Attorney General for 23 the Civil Rights Division of the Department of 24 Justice. The local election administrator against 25 VerDate Sep 11 2014 17:02 Jul 21, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4064.IH H4064 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 4064 IH whom such proceeding is brought may also de- 1 liver such pleadings to the Assistant Attorney 2 General. 3 (B) RIGHT TO INTERVENE.—The United 4 States may intervene in any administrative or 5 judicial proceeding brought to suspend, remove, 6 or relieve the duties of any local election admin- 7 istrator by a statewide election administrator 8 with respect to the administration of an election 9 for Federal office and in any action initiated 10 pursuant to paragraph (2) or in any removal 11 pursuant to paragraph (4). 12 (6) DEFINITIONS.—In this section, the fol- 13 lowing definitions apply: 14 (A) ELECTION.—The term ‘‘election’’ has 15 the meaning given the term in section 301(1) of 16 the Federal Election Campaign Act of 1971 (52 17 U.S.C. 30101(1)). 18 (B) FEDERAL OFFICE.—The term ‘‘Fed- 19 eral office’’ has the meaning given the term in 20 section 301(3) of the Federal Election Cam- 21 paign Act of 1971 (52 U.S.C. 30101(3)). 22 (C) LOCAL ELECTION ADMINISTRATOR.— 23 The term ‘‘local election admi [Text truncated for display. Full text available on Congress.gov.]