Editor’s note: This article is part of a series from leading experts with practical solutions to democratic backsliding, polarization, and political violence.
Before the 2020 election, Tina Barton was largely unknown outside of her home city of Rochester Hills, Michigan, where – among other duties – she administered elections for the city in her role of city clerk. That anonymity quickly evaporated in the wake of the election. As President Donald Trump and his allies spread lies and conspiracy theories about the election – a concerted disinformation effort that continues to this day – Barton, herself a Republican, joined many other election officials around the country in defending the integrity of the election.
Almost immediately, Barton faced a torrent of threats and harassment, including death threats to her and her family. In just one message, the anonymous caller repeatedly threatened to kill her and her family.
Barton’s story is far from unique. As meticulously documented by Reuters and other news outlets, the dissemination of conspiracy theories about the 2020 election has led to a wave of threats, intimidation, and harassment against election officials across the country. It is no wonder then that, according to a recent report by the Brennan Center and Bipartisan Policy Center (BPC), one-third of election officials feel unsafe in their jobs. Many are leaving their positions.
This mass exodus of qualified election administrators is a crisis for U.S. democracy. Any plan to confront that crisis must prioritize protecting election officials, so that they can continue to do their jobs without fear of harm to themselves, their employees, or their families. While much of the work to protect U.S. democracy has focused on federal legislation and federal law enforcement, state legislatures also have a critical role.
There are three reasons that the time is right for a renewed focus on state-level reforms to protect election officials. First, in many states, legislative sessions are just beginning. It is imperative that pro-democracy legislators of both parties advance democracy-enhancing election reform initiatives, which should include protecting election officials.
Second, because of the decentralized nature of election administration in the United States, election officials are not federal officers – their mandates are created by state and local law. Therefore, states have the authority and responsibility to take the steps necessary to protect election officials. While there is much the federal government can and should do to help, states are the first line of defense.
Third, federal efforts are unlikely to adequately address the problem. While there appears to be a bipartisan group of Senators working on a proposal, that effort is in its nascent stages, and it is not yet clear whether it will amount to anything or include meaningful measures to protect election officials. We can say much the same about the Department of Justice Election Threats Task Force, which was established to investigate and potentially prosecute threats against election workers. While that task force recently brought its first two cases, it has been slow to get off the ground. As a result, many of the perpetrators of the worst threats and harassment have faced no consequences to date.
One need only listen to the extreme abuse Barton and others have received to understand that these explicit death threats go well beyond any form of protected expression. Threats against those who administer elections are direct threats to U.S. democracy, and perpetrators need to be held accountable.
In short, there is a clear need for state legislatures to act.
State and Local Solutions
While elections and voting rights have been the subject of national debate and attention, the actual administration of elections in the United States is hyper-local. Two of the co-authors of this piece are experienced election administrators at the state and national levels, but we know where the heavy lifting takes place: at the local level. That’s because U.S. elections are primarily run by more than eight thousand local officials like Barton – town clerks, county election boards, local registrars, and even precinct-level volunteers and poll workers – in addition to state-level officials like secretaries of state and state election directors.
Local election officials are part of the community. They are well-positioned to understand the needs of their constituents and quickly respond to emergencies or changing circumstances. Because of the local nature of elections, voters have the opportunity to engage directly with and have their questions answered by those officials. Furthermore, election officials have generally adopted an ethos of professionalism, transparency, and non-partisanship. In this respect, while it is courageous and laudable that Barton and other Republican election officials spoke up against false claims being spread by members of their own party, their conduct is entirely consistent with the norms and culture of the profession.
The wave of threats and intimidation against election officials risks undermining all of these benefits. Turnover of election administrators following presidential elections is normal. But the scope and scale of the current exodus of election officials goes far beyond what is expected and is incredibly dangerous. Challenges caused by unprecedented stress from an ongoing pandemic, potential security threats, and erosion of confidence in U.S. elections due to lies and conspiracy theories will only be compounded if vacant election administration positions are filled by ideologues who do not share the profession’s commitment to non-partisan, transparent administration of elections.
Just as local election officials are part of their communities, state legislators are closer to the unique set of concerns in each state. Because so much of election administration is state-specific, the best solutions may come from the states.
Furthermore, protecting the basic security and well-being of the public servants who run elections should be a nonpartisan priority. Many of the solutions to threats to election administrators are relatively straightforward and may provide an opportunity for bipartisan consensus.
Lawmakers in several states are planning to or have already introduced legislation to address the wave of threats against election officials. But given the urgency of the threat and the opportunities for bipartisan state and local solutions, now is the time for more states to act – and to act decisively – to defend democracy.
What States Can Do
Legislators should be considering a variety of potential avenues to address these problems.
Funding, Security, and Protection of Personal Information
First, the basics: states need to act now to provide officials more funding to run upcoming elections and to ensure essential security for their buildings, polling locations, staff, and themselves. Too many states have cut back on resources for their elections just as the burden on administrators has mounted exponentially. Now is simply not the time to underfund these key components of the democratic system.
States can take other common-sense measures to protect election officials immediately. These include legislation to secure personally identifiable information, which election officials nationally have highlighted as a top concern. In the 2020 election cycle, many officials had their home addresses and phone numbers posted on the internet, exposing them to harassment and abuse. In one harrowing example, a Republican election official in Philadelphia, Al Schmidt, received graphic threats to kill his family that named his children and included his home address and pictures of his house. States can help protect against exposure by passing legislation to keep election officials’ personal information confidential and to facilitate the often cumbersome and costly process of removing it from internet databases.
Legislation can provide grants to retain companies that specialize in scrubbing personal material from the internet. Funding should also be made available for training on how to avoid exposure of private information and how to mitigate the likelihood and impact of doxing. Furthermore, in the wake of the 2020 election, election officials who received death threats reported having to purchase home security systems and request police monitoring of their homes. Grants should be made available to finance the purchase of requisite home and online security systems.
State-Based Threat Task Forces
Second, state legislatures must ensure that threats against election administrators are taken seriously, investigated thoroughly, and prosecuted where appropriate. One of the biggest concerns election officials have raised is inaction after repeated reports of serious threats. This failure to respond deeply undermines the United States’ commitment to the public servants who have put themselves on the line for its democratic system. State police forces and local prosecutors’ offices have not been equipped to address the sudden surge of hostility directed at election administrators. While investigating such threats may fall within their broad remit, it will rarely be a priority. It needs to be a priority.
States can address this enforcement gap by creating state-based task forces focused on responding to threats to election administrators and public officials. States should recognize that the extraordinary rise in threats requires an extraordinary and specially calibrated response. If supported and funded by legislatures now, these state task forces can establish processes and create clear standards for investigating credible threats and holding perpetrators accountable.
The DOJ’s Election Threats Task Force has an essential role to play in coordinating a national response to the problem. But because election administration is so local, states will often be best positioned to respond to the types of threats officials are receiving at the local level, as long as they have the resources to do so. With support from state legislatures, state task forces could work in conjunction with DOJ to provide mutual support, resources, information about threats, and strategies to address them.
Unfortunately, some states seem inclined to go in the opposite direction of what is needed now. Florida Governor Rick DeSantis proposed nearly $6 million for the creation of a 54-person law enforcement unit focused on investigating speculative fraud allegations rather than supporting election officials. Similarly, officials and candidates in Arizona and Georgia have dumped vast amounts of time and money into fruitless relitigation of the 2020 election because they didn’t like the results. If a fraction of such resources were directed toward the very real, sustained assault on election administrators generated by the lies about fraud, U.S. election systems would operate far more securely and smoothly.
New Legal Causes of Action to Deter Threats
Third, since the wave of threats targeting election officials has been unprecedented, new tools may be warranted to address this growing problem. States should explore new legal mechanisms to ensure accountability and deter future misconduct before the situation repeats itself in the next election cycle.
All states and the federal government impose some form of criminal penalty for making death threats or other forms of “true threats.” The existence of such penalties, however, has not stemmed the type of harassment that Barton and her peers have had to endure. So what should states do?
An initial approach some lawmakers are considering is establishing new or heightened criminal penalties in the specific context of threats against election officials. Enhanced criminal penalties have not always deterred threatening behavior, however. They are unlikely to provide a silver bullet, particularly when election officials have cited inaction by prosecutors as a primary obstacle. Threats against election officials do cause more serious societal harm than general harassment because they seek to disrupt the functioning of our basic democratic systems. But state legislators should not consider the problem addressed simply through adjustments to criminal penalties. And lawmakers should examine their criminal codes carefully to determine if statues on the books provide sufficient clarity and flexibility to address the particular harm caused by these threats.
Another route for states to explore is the creation of a civil cause of action to hold individuals liable for threatening or intimidating election administrators in the performance of their official duties. Such legislation would need to be carefully drafted to ensure that it couldn’t be misused. But a properly calibrated civil action could empower election officials to enforce their rights themselves. Suits could be initiated by victims of harassment or by attorney general offices. Election officials would thereby have a specialized mechanism to obtain damages from perpetrators and court orders preventing further harassment. And states could incentivize private enforcement by awarding attorneys’ fees to prevailing parties. A further advantage of such actions is that they may end up being more easily enforceable due to the lower burden of proof and mens rea requirements applicable to civil suits.
Collecting Data and Building Public Awareness
Fourth, more robust data collection is necessary. Due to a lack of available data about threats election officials are receiving, we do not know the full scope of the problem. Investigative journalism and the Brennan Center/BPC report have uncovered a clear and serious problem. But even that reporting underscored that some officials have been reluctant to speak out about their harassment for fear of further reprisal. So the existing information may understate the matter.
States should designate funding to require collection of data on the number of threats election officials have reported, the number of investigations initiated, and the number of prosecutions undertaken in response. Lawmakers can also hold hearings to review what police and prosecutors have done to address the problem. States should also establish processes to ensure that reporting threats is straightforward and secure. These efforts could contribute to enforcement by ensuring visibility and accountability into how law enforcement prioritizes this issue.
Finally, states should consider funding public awareness campaigns to humanize election officials and provide information about their work. Clearly, much of the harassment election administrators have received derives from fundamental misunderstandings about how the process works and election officials’ role in administering it. States can build public awareness about the impact of threats on victims as well as the potential consequences of making such threats.
This recent epidemic of intimidation and harassment has been driven by disinformation. States need to invest in improving public awareness about the reality of election officials’ work and the important role they play in ensuring democratic government. Civil society and other stakeholders must also play a central role in combatting disinformation and educating the public on threats to election integrity. This will help cure the underlying disease and help state and local governments recruit the next generation of public servants.
State legislators have a unique role to play in protecting their election officials. These initial recommendations can serve as a starting point for a conversation on bipartisan solutions. But states need to act now or risk even worse attacks on U.S. democracy in 2022 and 2024.