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Election Workers Deserve Protection From Harassment by Partisan Mobs
We need a suite of new state laws to deter misbehavior
One of the fundamental purposes of electoral democracy is to channel otherwise violent social conflicts into peaceful, orderly procedures. Instead of deciding our disputes in the streets, we decide them at the ballot box. Instead of existential crises over who will wield power for life, we have recurring elections. Fair elections are far from sufficient to ensure a free society, but they are absolutely necessary.
Conducting these elections is no small task, especially in the United States, where we have more than half a million elected offices and numerous referendums. In some states, there can be as many as four election days in a single year. Simply as an exercise in logistics, it’s a remarkable feat. Hundreds of thousands of election workers, including local volunteers and state and county officials, are required to pull it off.
Rarely do those involved get the kind of public recognition accorded to teachers, first responders and other public servants. But in recent years, these unsung heroes have become a target of the very chaos they help prevent. While they, like voters themselves, are ostensibly protected by state and federal laws against intimidation, threats and harassment, these laws are proving unwieldy and inadequate. State lawmakers need to remedy the problem.
A Barrage of Threats
Since 2020, election workers have been bombarded with threats and harassment, and individual voters have faced intimidation as well. Largely thanks to former president Donald Trump, conspiracy theories about how elections are run have gone mainstream. Those bearing the brunt of it are not nationally prominent and powerful politicians. They’re the county clerks, canvassing boards, poll workers and other local community members who suddenly find themselves living in very real fear.
Consider just a few of the many examples of election workers and the threats against them following the 2020 presidential election:
Maribeth L. Witzel-Behl, the city clerk in Madison, Wisconsin, received a flood of threats after the far-right conspiracy blog Gateway Pundit accused her of producing thousands of fake votes. The charge was complete nonsense. That didn’t stop one commenter from specifying the caliber of bullet he thought should be used to murder her.
In Arizona, Bill Gates, a Republican county supervisor responsible for elections, announced he won’t be seeking reelection after threats forced him to relocate to an undisclosed location under police protection.
In Fulton County, Georgia, election workers Ruby Freeman and her daughter Wandrea Moss were a particular target of false accusations from Trump and his allies. The subsequent harassment targeted not only their homes, but went so far as people showing up at Moss’ grandmother’s home and trying to force their way in.
In Texas, a man was convicted, according to court records, for threatening “mass shooting of poll workers and election officials.” He wrote that, “Someone needs to get these people AND their children.”
In rural Coos County, Oregon, the threats got so bad that officials placed metal detectors at the county elections office. Over the course of just one month, a security officer reportedly confiscated 20 guns and 60 knives or other weapons from people trying to enter the office.
This is just a small sampling of cases extreme enough to result in media coverage or felony prosecutions. Most cases result in neither.
Other, less extreme incidents include people being belligerent with poll workers, yelling and making demands over things like voter ID procedures and the use of voting machines. Of course these poll workers, who are often uncompensated volunteers or paid only nominal sums, do not have the authority to rewrite state laws and policies to satisfy the ill-informed demands of their accusers.
Likewise, county clerks and equivalent local administrators have no power to change how votes are counted and what rules must be followed. Their task is mostly ministerial, not policymaking. But that hasn’t stopped angry phone calls and, worse, menacing visitors showing up at homes of not just election workers but even individual voters. Social media, with its ability to instantly blast the most deranged ramblings out to a mass audience, has only compounded the problem.
The demoralization is tangible. In my work on election policy at the Joseph H. Rainey Center, intimidation of election workers is by far the number one problem I hear about. It has become increasingly difficult to recruit and retain workers in this field, including the highly specialized talent (such as particular software skills) necessary for some aspects of election administration. Many, understandably, do not talk to reporters about these threatening experiences, fearing the spotlight would only make their problems worse.
At the federal level, there has been some response. The Department of Justice’s Election Threats Task Force has been racking up convictions, mostly in cases of explicit death threats. But being subject to federal prosecution is like getting struck by lightning: the odds are low, and it tends to hit the tallest object around. Only the most extreme cases result in a federal prosecutor seeking to put somebody away for years.
The purpose of the criminal justice system is to deter, and too many election workers have been suffering from a lack of sufficient deterrence. The problem is not, in general, that laws criminalizing election intimidation are too narrow to cover the wide range of inappropriate conduct that might occur either at the polls or following a disputed election. Such laws are generally written in broad terms that are at or near the constitutionally permissible maximum without treading on First Amendment rights. Counterintuitively, the problem is that the only available penalties are too harsh. In many states, this means that the crime of election-related intimidation is currently only prosecutable as a felony.
In some cases, throwing the book at an offender is entirely appropriate. Outright threatening to kill somebody or harm their family should merit a lengthy prison sentence. Doing so in ways that undermine our elections is especially heinous, justifying harsher punishment.
But in many instances, the problematic conduct is more borderline. It can be a tough call to decide whether somebody has merely been rude or has crossed the line into intimidation. When the only option prosecutors have is to charge a felony or do nothing, doing nothing will often prevail.
And this is a problem. As researchers have long known, certainty of punishment is a much greater disincentive than severity of punishment.
Consider a case that arose when a poll worker in Buffalo, Wyoming, was the alleged perpetrator, rather than the victim. The worker, who happened to be a former state legislator, reportedly berated a voter for wearing a mask. No reasonable prosecutor would look at this and say a felony charge was merited, but neither should something like this be considered acceptable behavior. Poll workers, too, must be kept in line. Voters have the right to cast their ballots in peace, without being accosted about hot-button political issues or their personal choices.
To that end, I was recently pleased to testify in favor of a bill in Wyoming that recognizes the need for more tempered punishments that are also more likely to be applied. Wyoming legislators are considering a new, misdemeanor-level offense of election intimidation, with felony prosecution reserved only for more serious, “aggravated” cases. The misdemeanor would be punishable by up to six months in jail or a fine of up to $1,000, or both.
This lower-level offense would give local prosecutors the tool they require to make a sound judgment based on context and the need to send a message about acceptable behavior during elections. It is a “scared straight” option, exactly what is necessary to address the sheer volume of cases that may seem individually inconsequential but are taking a massive cumulative toll. Crucially, catching people in less severe infractions can prevent a pattern of radicalization that culminates in more extreme behavior.
Wyoming’s election intimidation bill passed a bicameral joint committee with unanimous support. It will go to both houses of the state Legislature for their consideration next year. In adopting it, the Legislature would not just provide a new legal tool, but also send an important message: Lawmakers take this problem seriously and expect state and local prosecutors to do something about it. Legislatures in other states should consider following their lead to help ensure we continue to resolve our social disputes peacefully at the ballot box—not out on the streets.
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