“True Threats” and the Difficulties of Prosecuting Threats Against Election Workers 

On August 17th, 2022, ten election workers were conducting primary early voting at the Sunrise Senior Center in Broward County, Florida. Six or seven voters were at the center that morning when Joshua David Lubitz entered. Once inside, Lubitz began counting election workers, and he was heard to say, “should I kill them one by one, or should I blow the place up,” “my dad would love this. It would be easy,” and “this would be nice and sweet.” The poll workers who overheard these comments immediately reported them to the poll deputies stationed outside. However, these deputies had no law enforcement authority. Later, after Lubitz left the center and was driving away, he was seen making threatening gestures. FBI Miami investigated the incident, and on October 6, 2022, Lubitz was indicted on a charge of threatening election workers, to which he pleaded guilty in May of 2023.

This was not an isolated incident, but part of a growing trend. The U.S. Department of Justice reports that threats of violence against election workers have significantly increased following the 2020 election. A Brennan Center for Justice survey found that three out of four election officials say threats have increased in recent years, and one in six have been threatened personally. While the DOJ and state officials have worked to combat this trend through criminal prosecutions, there are significant challenges, especially the high “true threat” bar set for bringing such charges following a recent Supreme Court ruling.

DOJ Task Force

In July 2021, the DOJ established an “Election Threats Task Force” to “address the rise in threats against election workers, administrators, officials, and others associated with the electoral process.” The task force is under the leadership of Deputy Attorney General Lisa Monaco and under the direct control of the “Criminal Division’s Public Integrity Section.” It also works with groups inside DOJ, like the FBI and National Security Division, as well as outside DOJ, including the Department of Homeland Security.

The taskforce has several statutes available to charge individuals who make threats against election workers. The most relevant ones include: 

• 18 U.S.C. § 115 prohibiting threats to federal officials, employees, or their family members made with the purpose of impeding, interfering, or intimidating them in the performance of their official duties;
• 18 U.S.C. § 876 prohibiting sending threats via mail; and
• 18 U.S.C. § 875(c) prohibiting the transmitting in interstate or foreign commerce any threat to kidnap or injure another person. 

With regard to state laws, prior to January 2022, ten states had laws on the books specifically establishing protections for election officials; from January 2022 to today, an additional 15 states put in place protections; finally, 20 other states have introduced bills to either add new protections or enhance existing protections for election officials.

However, as of August 2023, while the DOJ task force had reviewed over 2,000 reports of threats to election workers, it had charged only 14 cases and secured nine convictions. This is because most threats to election workers fail to satisfy the stringent legal standard set by the Supreme Court. This standard relies on protections provided by the First Amendment and comes into play where a defendant’s speech is at issue. Then-Assistant Attorney General Kenneth Polite Jr. told the Senate Judiciary Committee in 2022, “It is important to bear in mind that the vast majority of communications directed at election workers, offensive though they may be, will not constitute true threats subject to federal criminal prosecution due to the robust protections afforded to political speech by the First Amendment.”

The Need to Prove a “True Threat”

The First Amendment states quite tersely, “Congress shall make no law … abridging the freedom of speech,”  and the Court has read the amendment to entail “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” even where such debate includes “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

In practice, the application of the First Amendment has provided a constitutional shield preventing the government from punishing the expression of an idea “simply because society finds the idea itself offensive or disagreeable,” and the protections offered extend to individual and collective speech. The degree of speech protections provided by this doctrine stands in stark contrast to much of the rest of the world, as exemplified by the notion of hate speech. Many countries such as the United Kingdom criminalize hate speech, while the U.S. Supreme Court has long protected such communications.

That said, the protections of the First Amendment are not unlimited. The Supreme Court has long held that some categories of speech that have “no essential part of any exposition of ideas and are of such slight social value as a step to truth” are not so protected, as possible benefits of these types of speech can be “clearly outweighed by the social interest in order and morality.”

These exceptions include so-called “true threats.” The term “true” is meant to distinguish actual threats from jokes, “hyperbole,” or other statements that, when viewed in context, “do not convey a real possibility that violence will follow.” For example, a person saying, “I am going to kill you for showing up late,” is clearly not making a true threat. Thus, to pursue a constitutionally valid criminal prosecution against an individual or organization for threats against election workers, the government must establish that the words constitute a “true threat.” But that is no easy task.

“Reckless” Intent and True Threats

True threats are “serious expression[s],” conveying that a speaker means to “commit an act of unlawful violence.” Whether such a threat was made has depended not on the “mental state of the author,” but instead on “what the statement conveys to the person on the other end.” This is a very high bar. For example, in Watts v. United States (1969), the Supreme Court overturned Watts’ conviction for his statement at an antiwar rally: “I am not going [to Vietnam]. If they ever make me carry a rifle the first man I want to get in my sights is LBJ.” The Supreme Court ruled that Watts’ language was not a true threat but “political hyperbole.”

This is an objective test, i.e., in prosecuting a “true threat,” the government needs to show an individual’s statements were objectively threatening. And by not requiring proof of the mental state of the author, it would suffice for the government to show a defendant acted “with knowledge that the communication will be viewed as a threat.”

That said, until 2023¸ the Supreme Court had not ruled on whether the First Amendment additionally required proof of a defendant’s subjective mindset. Indeed, courts across the country were divided on the question.

In summer of last year in the case of Counterman v. Colorado, the Court ruled on the issue. Specifically, the Court vacated the conviction of Billy Counterman, who had been convicted of stalking musician Coles Whalen through online messages. Counterman had sent Whalen thousands of messages which included texts such as: “Staying in cyber life is going to kill you,” “You’re not being good for human relations. Die.” In response to Counterman’s threats, Whalen “stopped walking alone, declined social engagements, and canceled some of her performances.” Counterman was charged for this behavior under a Colorado statute that criminalized “[r]epeatedly … mak[ing] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.”

Counterman moved to dismiss the charge on First Amendment grounds, and the Court agreed. The justices held that to avoid a “chilling effect” on protected speech, the First Amendment “demand[ed] a subjective mental-state requirement” for prohibitions on true threats and settled on recklessness as the requisite mens rea. To successfully pursue a criminal prosecution based on a true threat of violence, the government must establish that a reasonable person would understand that the statement in question was a “true threat” and the government must then show that the act of making the statement was at least reckless, i.e., that the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

As such, in light of Counterman, the existence of a “true threat” not only depends on what the statements conveys to a reasonable person receiving the threat, an objective test, but to be held as liable for making a “true threat,” the individual must have additionally made the statement with at least a reckless mental state, a new subjective requirement. In the words of Justice Amy Coney Barrent’s dissent, the Court established “a prophylactic buffer zone … that protects true threats” and “unjustifiably grants true threats preferential treatment.”

 Counterman increased the government’s prosecutorial burden. This is a high but not impossible bar to meet, as shown in United States v. Hunt, decided by the Second Circuit Court of Appeals in September of last year. The Second Circuit upheld a conviction under 18 U.S.C. § 115(a)(1)(B), which punishes anyone who “threatens to assault, kidnap, or murder, a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under such section.” In Hunt, the Defendant made numerous statements articulating his intention to kill U.S. senators (such as Hunt urging others to “slaughter” members of the U.S. Congress and saying that he would go to the Capitol to “take out these Senators and then replace them with actual patriots”). The Second Circuit held that evidence presented during his trial was sufficient to satisfy the recklessness mens rea requirement established by Counterman.

Conclusion

In the leadup to Election Day 2024, election workers continue to face threats, and the DOJ Task Force is continuing its work. For example, on August 31, 2023, the DOJ secured guilty pleas in two criminal cases involving defendants charged with threatening election workers. And on February 27, 2024, an Indiana man pleaded guilty to a charge of sending a threatening communication to an election worker in Michigan.

However, these law enforcement actions are rare especially when assessed against the many threats made against election officials. Prosecuting any supposed threats will be a new challenge under Supreme Court precedents now including Counterman. Indeed, the Justice Department argued strenuously but in vein for the Court to avoid this outcome, noting that “[t]hreats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers.”

Beyond the federal response, various state laws explicitly address protections for election officials and poll workers. For example, ten states have “criminalized intimidation and interference with election workers by establishing incarceration and fines for offenders.” Oregon, Colorado, and Maine have either put in place or increased penalties for threats against election workers; Vermont has made it easier to prosecute those threatening election workers; and California will now permit election workers to keep their addresses confidential. 

States have had additional difficulties in addressing the issue, namely that the reported threats have not been taken seriously by local law enforcement. Indeed, there have been numerous reports of severe threats dismissed by local law enforcement. Like their federal counterparts, any prosecutions by state law enforcement will also have to meet the Counterman standard.