November 4, 2022
Voting Systems and Federal Law
Laws regulating voting systems, including voting machines
 52 U.S.C. § 10307, which prohibits a person acting
and other election infrastructure, exist primarily at the state
under color of law from willfully failing or
and local levels. However, the federal government
refusing to tabulate a person’s vote who is entitled
maintains significant authority over elections and plays an
to vote, among other things.
important role in safeguarding election infrastructure. In
that regard, Congress has passed legislation that sets forth
 52 U.S.C. § 20511, which provides criminal
requirements for voting systems . The Help America Vote
penalties for defrauding the residents of a state of a
Act of 2002 (HAVA; 52 U.S.C. §§ 20901-21145), in
fair election by manipulating balloting processes,
particular, includes among other things, federal
among other things.
requirements for voting systems (52 U.S.C. § 21081). As
authorized by HAVA, the U.S. Election Assistance
 52 U.S.C. § 20701, which provides criminal
Commission (EAC) promulgates voluntary federal
penalties for officials willfully failing to retain and
guidelines to assist states in implementing these
preserve election records.
requirements for their voting systems. Additionally,
Congress has passed several federal criminal laws
 52 U.S.C. § 20702, which provides criminal
prohibiting the intrusion into or misuse of voting systems.
penalties for any person who willfully steals,
destroys, conceals, mutilates, or alters a paper or
Criminal Laws
record covered by § 20701.
The Computer Fraud and Abuse Act (CFAA) prohibits,
among other things, a number of activities involving
Help America Vote Act (HAVA)
accessing a protected computer “without authorization” or
Under HAVA, a voting system is defined as “the total
accessing a protected computer that exceeds authorization.
combination of mechanical, electromechanical, or
In 2020, Congress amended the CFAA to broaden the
electronic equipment (including the software, firmware, and
definition of a “protected computer” to include a computer
documentation required to program, control, and support
that is part of a voting system and that either is used for a
the equipment) that is used to define ballots; to cast and
federal election or has moved in or otherwise affected
count votes; to report or display election results; and to
interstate or foreign commerce (18 U.S.C. § 1030(e)(2)(C)).
maintain and produce any audit trail information” as well as
Since its enactment, § 1030(e)(2)(C) prohibits unauthorized
the “practices and associated documentation used” to test
individuals from accessing a voting system and transmitting
and maintain the system. (52 U.S.C. § 21081). HAVA’s
or retaining protected information. Another provision, 18
voting system requirements for federal elections include
U.S.C. § 371, prohibits persons from conspiring to commit
machines that can produce a permanent paper record with a
an offense against or to defraud the United States. Among
manual audit capacity and that have accessibility features
recent criminal cases related to elections systems brought
for other languages and individuals with disabilities. For
by the Department of Justice (DOJ) using these provisions
more information on HAVA, please see CRS Report
include a 2021 case brought against two Iranian nationals,
R46949, The Help America Vote Act of 2002 (HAVA):
where they were principally charged under 18 U.S.C.
Overview and Ongoing Role in Election Administration
§ 1030 with computer intrusion related to the 2020
Policy, by Karen L. Shanton.
presidential election. In 2018, DOJ secured indictments
against twelve Russian nationals, charging them with
Voluntary Voting Systems Guidelines (VVSG)
computer intrusion and conspiracy related to the 2016
As part of its advisory role to state and local governments,
election under 18 U.S.C. §§ 1030 and 371.
HAVA requires the EAC to develop and maintain a set of
guidelines called the Voluntary Voting System Guidelines
Several other criminal laws may arise in the context of
(VVSG). The VVSG are specifications for voting systems,
intrusion into or misuse of voting systems , including:
including basic functionality, accessibility, and security
capabilities. In addition, 52 U.S.C. § 20971 further requires
 18 U.S.C. § 241, which prohibits two or more
the EAC to provide for the testing, certification,
persons from “conspir[ing] to injure, oppress,
decertification, and recertification of voting systems
threaten, or intimidate any person” in the exercise
technology by accredited laboratories.
of a right.
While many states have adopted aspects of the VVSG, the
 18 U.S.C. § 242, which prohibits any person acting
guidelines are voluntary, and states may choose which
under color of law from willfully subjecting any
federal guidelines, testing, or certification processes to
person to the deprivation of a right.
adopt under their own state laws. According to a February
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Voting Systems and Federal Law
2021 EAC press release, at least 38 states “use the
services to state and local governments to assist them in
standards in some way” for their elections.
reducing risk to their election systems and facilities.
Legal Issues
Considerations for Congress
Under HAVA, the Attorney General “may bring a civil
Article 1, Section 4, of the U.S. Constitution, the Elections
action against any State or jurisdiction in an appropriate
Clause, states, “The Times, Places and Manner of holding
United States District Court for such declaratory and
Elections for Senators and Representatives, shall be
injunctive relief (including a temporary restraining order, a
prescribed in each State by the Legislature thereof; but the
permanent or temporary injunction, or other order) as may
Congress may at any time by Law make or alter such
be necessary to carry out [HAVA’s] uniform and
Regulations, except as to the Places of chusing Senators.”
nondiscriminatory election technology and administration
Article II, Section 1 provides that in presidential elections,
requirements.” (52 U.S.C. § 21111). HAVA does not
“Congress may determine the Time of chusing the Electors,
explicitly provide a private right of action. While some
and the Day on which they shall give their Votes; which
federal courts have found rights of action for provisions of
Day shall be the same throughout the United States.”
HAVA enforceable under 42 U.S.C. § 1983, which
Congress does not have general regulatory authority over
provides a cause of action against any person who, under
state and local elections, but it may still exercise its power
color of state law, abridges constitutionally-protected rights
over such entities in several contexts. For instance,
(see e.g., Colon-Marrero v. Velez, 813 F.3d 1, 16-20 (1st
Congress has the authority to prevent unconstitutional voter
Cir. 2016); Sandusky County Democratic Party v.
disenfranchisement in a state or local election. Relying on
Blackwell, 387 F.3d 565, 572 (6th Cir. 2004)), other courts
its Spending Clause authority (U.S. Const. art. I, § 8, cl. 1),
have declined to do so (Crowley v. Nevada ex. rel. Nevada
Congress may also condition the receipt of federal funds for
Secretary of State, 678 F.3d 730, 735 (2012); Taylor v.
state or local elections on compliance with federal
Onorato, 428 F.Supp. 2d 384, 386 (W.D. Pa. 2006)).
requirements. Congress’s authority to legislate regarding
Additionally, 52 U.S.C. § 21112 requires states to establish
these various issues derive, in addition to its Article I
administrative complaint procedures for individuals who
powers, principally from the Fourteenth and Fifteenth
believe a HAVA requirement has been violated.
Amendments.
Federal courts generally give broad deference to state
Voting systems incidents—like delays, misuse, or
election administration policies, with the Supreme Court
cyberattacks—can invite attempts to discredit the electoral
acknowledging in Storer v. Brown, 415 U.S. 724 (1974)
process, reduce voter turnout, and create political
that, “as a practical matter, there must be a substantial
instability. Congress may consider several different types of
regulation of elections if they are to be fair and honest and
requirements for voting systems beyond those currently
if some sort of order, rather than chaos, is to accompany the
existing in federal law. For example, Congress may expand
democratic processes.” However, voting systems
existing voting system requirements in HAVA, make the
administered by states must still comply with federal
guidelines under the VVSG mandatory, or create new
requirements, including HAVA, the Voting Rights A ct
criminal penalties for conduct specifically targeting election
(VRA), the National Voter Registration Act (NVRA) and
infrastructure.
the First, Fourteenth, and Fifteenth Amendments of the U.S.
Constitution.
Proposed legislation in the 117th Congress to address voting
systems includes S. 2747, the Freedom to Vote Act, and
Executive Branch Developments in
H.R. 1, the For the People Act, which would amend HAVA
Securing Election Infrastructure
to include additional voting systems requirements and
In 2017, the U.S. Department of Homeland Security (DHS)
provide federal grants to state and local governments for
designated election equipment as “critical infrastructure”
election infrastructure. Both bills would require the VVSG
deemed “so vital to the United States that the incapacity or
to include electronic poll books for voluntary testing and
destruction of such systems and assets would have a
certification, and would require states to “seek to ensure”
debilitating impact on security, national economic security,
that any voting machine used in an election for federal
national public health or safety, or any combination of those
office is manufactured in the United States. Additionally,
matters[.]” According to DHS, the designation allows the
both bills would create an explicit private right of action for
federal government to better prioritize election
HAVA and amend 52 U.S.C. § 21081 to require states to
infrastructure in policy planning. However, the Department
replace paperless voting machines with voting systems that
emphasized that the designation “does nothing to change
provide voter-verified paper ballots for federal elections.
the role state and local governments have in administering
and running elections.” Additionally, DHS, through its
Jimmy Balser, Legislative Attorney
Cybersecurity and Infrastructure Security Agency, provides
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Voting Systems and Federal Law


Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
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Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
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