Criminalizing Elections Is on Red States’ Agenda This Year

In April 2022, Florida created a special unit to investigate election crimes. Just a few months later, Georgia followed suit and enacted a bill empowering the Georgia Bureau of Investigation to go after reported violations of election law. These two bills turned out to be the start of a trend in Republican-sponsored election legislation that changes how election laws are enforced — ahead of its 2023 legislative session, Texas lawmakers introduced a wave of bills modifying election law investigations and enforcements. This year, Democracy Docket has tracked a wave of similar legislation in states across the country. While supporters claim these laws are necessary to increase the security of our elections, in reality they could harm voters and make our elections more difficult to run.

The most common bills increase penalties for violating election law or create new crimes in the election process.

Many states have bills increasing penalties for violating election crimes, like multiple bills in Texas that would reclassify these crimes as a felony instead of a misdemeanor. Other bills, like a proposal in South Carolina, would add new election crimes that voters could unwittingly violate. 

• A bill in Alaska would create a new election fraud felony and add new ways to commit other existing felonies to state law.
• A bill in Indiana would punish individuals convicted of a voting fraud offense by disenfranchising them for 10 years after their conviction, even if they aren’t imprisoned.
• A bill in Mississippi would make it a crime to “fraudulently and knowingly” request a mail-in ballot, while another drastically increases the penalties for violating several aspects of election law.
• A bill in South Carolina would make it a crime to serve as a mail-in ballot witness for more than five voters.
• A bill in South Dakota would increase the penalties associated with violations of the ballot measure process.
• Multiple bills in Texas would change both illegal voting and election fraud to a felony from a misdemeanor. Notably, making illegal voting a felony is one of the Texas Lt. Gov. Dan Patrick’s (R) priorities for this year’s legislative session.
• A bill in Wyoming would make it a misdemeanor for anyone to distribute an unsolicited mail-in ballot request form.

By creating new election crimes and increasing penalties, these states make it more likely voters are inadvertently swept up in, and harmed by, the criminal justice system. Many of these proposed bills criminalize aspects of the election process that have little to do with preventing fraud. The bills in South Carolina and Wyoming, for example, could ensnare individuals who just want to help expand access to voting — much like the ban on ballot collection in Arizona.

Three more states look to follow Florida and Georgia by creating new election crime forces.

At least three states are looking to emulate Florida and Georgia’s examples by creating specialized forces to investigate complaints of voter fraud or other election law violations. Multiple bills in Texas, for example, seek to create a system of election marshals to investigate crimes. In Missouri, Republicans have proposed creating a new office of Election Crimes and Security within the secretary of state’s office. In Ohio, a recently introduced bill would codify an election integrity division in the secretary of state’s office that would investigate complaints and, if needed, refer them to law enforcement.

Other bills, while not creating new specialized offices or units to investigate, instead empower other officials or individuals to conduct or initiate investigations. Proposed legislation in Arizona would allow candidates and political party or committee officials to submit complaints about actions taken by election officials or irregularities to county elections offices, and would require an official response to each one. Additional bills in Texas would transfer election law authority from the secretary of state to the attorney general and enable select individuals to initiate investigations and audits of election officials. All of these bills would likely increase the number of investigations in these states, and potentially bog down elections offices with frivolous complaints.

Other states want to remove discretion from local prosecutors.

Another major theme in these election law enforcement bills is removing discretion from local prosecutors when it comes to investigating election crimes. Most of the time, prosecutors get to decide who they charge and what charges to bring. Someone who violates an election law may not be prosecuted for it, or charged with a lesser crime, if a local prosecutor determines there are extenuating circumstances. But these bills would remove that element of discretion, either by requiring prosecutors to bring more charges or giving this responsibility to other officials who may be more inclined to go after violations of election law.

The Florida Legislature, for instance, recently passed a bill that would allow statewide prosecutors to prosecute election crimes after some cases brought by the new elections crime unit were dismissed by judges or dropped by local investigators. Gov. Ron DeSantis (R) signed it into law on Feb. 15. Texas has seen similar bills introduced in its Legislature, with one that would give the attorney general the power to bring election crime charges and another that would give the attorney general the power to force local prosecutors to maximally prosecute election crimes. Finally, West Virginia has a proposal to allow the state attorney general to prosecute election fraud if the local prosecutor declines to take action. All of these proposals could make election crime prosecutions more likely, especially from overzealous officials who are more interested in scoring political points than fairly administering justice.

A handful of states could give authority to legislators to intervene in election law disputes.

South Dakota and West Virginia both have bills that would allow their state legislatures to wade into election law disputes. The proposals would give state lawmakers the power to take legal action against local election officials who make unauthorized changes to election law. These laws would deprive election officials of the ability to adapt to emergencies or changing circumstances, as many did during the COVID-19 pandemic. It would also likely contribute to an already hostile climate for election workers, who may have to second guess every decision lest they run afoul of state legislators.

What happened in Florida demonstrates why these bills are problematic.

In the wake of the creation of Florida’s election crimes unit, DeSantis touted the arrests of 20 individuals for voting illegally as proof of nefarious forces at work in American elections. But subsequent developments revealed that many of these individuals simply made a mistake. They erroneously believed they were eligible to vote, and in some cases they were even told by DeSantis’ government that they were eligible. They weren’t malicious actors — they broke the law without intending to.

The Florida arrests show why stepping up election law enforcement in our country not only depletes resources but also harms voters. Actual voter fraud is vanishingly rare, so creating new election crimes investigators, increasing penalties and taking away prosecutorial discretion just increases the likelihood that people like those 20 individuals in Florida are swept up in the criminal justice system. With the wave of election crimes bills currently moving through state legislatures, we may see more and more people like them in other states.