Voting Systems and Federal Law

Voting Systems and Federal Law

Updated April 4, 2024
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 refusing to
and local levels. However, the federal government
tabulate a person’s vote who is entitled to vote, among
maintains significant authority over elections and plays an
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 penalties
requirements for voting systems. The Help America Vote
for defrauding the residents of a state of a fair election
Act of 2002 (HAVA; 52 U.S.C. §§ 20901-21145), in
by manipulating balloting processes, among other
particular, includes among other things, federal
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 penalties
Commission (EAC) promulgates voluntary federal
for officials willfully failing to retain and preserve
guidelines to assist states in implementing these
election records.
requirements for their voting systems. Additionally,
Congress has passed several federal criminal laws
• 52 U.S.C. § 20702, which provides criminal penalties
prohibiting the intrusion into or misuse of voting systems.
for any person who willfully steals, destroys, conceals,
mutilates, or alters a paper or record covered by §
Criminal Laws
20701.
The Computer Fraud and Abuse Act (CFAA) prohibits,
among other things, a number of activities involving
Help America Vote Act of 2002 (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 persons
the EAC to provide for the testing, certification,
from “conspir[ing] to injure, oppress, threaten, or
decertification, and recertification of voting systems
intimidate any person” in the exercise of a right.
technology by accredited laboratories.
• 18 U.S.C. § 242, which prohibits any person acting
While many states have adopted aspects of the VVSG, the
under color of law from willfully subjecting any person
guidelines are voluntary, and states may choose which
to the deprivation of a right.
federal guidelines, testing, or certification processes to
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
Considerations for Congress
standards in some way” for their elections.
Article 1, Section 4, cl. 1, of the U.S. Constitution, the
Elections Clause, states, “The Times, Places and Manner of
Legal Issues
holding Elections for Senators and Representatives, shall be
Under HAVA, the Attorney General “may bring a civil
prescribed in each State by the Legislature thereof; but the
action against any State or jurisdiction in an appropriate
Congress may at any time by Law make or alter such
United States District Court for such declaratory and
Regulations, except as to the Places of chusing Senators.”
injunctive relief (including a temporary restraining order, a
Article II, Section 1, cl. 4, provides that in presidential
permanent or temporary injunction, or other order) as may
elections, “Congress may determine the Time of chusing
be necessary to carry out [HAVA’s] uniform and
the Electors, and the Day on which they shall give their
nondiscriminatory election technology and administration
Votes; which Day shall be the same throughout the United
requirements.” (52 U.S.C. § 21111). HAVA does not
States.” Congress does not have general regulatory
explicitly provide a private right of action. While some
authority over state and local elections, but it may still
federal courts have found rights of action for provisions of
exercise its power over such entities in several contexts. For
HAVA enforceable under 42 U.S.C. § 1983, which
instance, Congress has the authority to prevent
provides a cause of action against any person who, under
unconstitutional voter disenfranchisement in state and local
color of state law, abridges constitutionally-protected rights
elections. Congress’s authority to legislate regarding these
(see e.g., Colon-Marrero v. Velez, 813 F.3d 1, 16-20 (1st
issues derives principally from the Fourteenth and Fifteenth
Cir. 2016); Sandusky County Democratic Party v.
Amendments. Relying on its Spending Clause authority
Blackwell, 387 F.3d 565, 572 (6th Cir. 2004)), other courts
(U.S. Const. art. I, § 8, cl. 1), Congress may also condition
have declined to do so (Crowley v. Nevada ex. rel. Nevada
the receipt of federal funds for state or local elections on
Secretary of State, 678 F.3d 730, 735 (9th Cir. 2012); Taylor
compliance with federal requirements.
v. Onorato, 428 F.Supp. 2d 384, 386 (W.D. Pa. 2006)).
Additionally, 52 U.S.C. § 21112 requires states to establish
Voting systems incidents—like delays, misuse, or
administrative complaint procedures for individuals who
cyberattacks—can invite attempts to discredit the electoral
believe a HAVA requirement has been violated.
process, reduce voter turnout, and create political
instability. Congress may consider several different types of
Federal courts generally give broad deference to state
requirements for voting systems beyond those currently
election administration policies, with the Supreme Court
existing in federal law. For example, Congress may expand
acknowledging in Storer v. Brown, 415 U.S. 724 (1974)
existing voting system requirements in HAVA, make the
that, “as a practical matter, there must be a substantial
guidelines under the VVSG mandatory, or create new
regulation of elections if they are to be fair and honest and
criminal penalties for conduct specifically targeting election
if some sort of order, rather than chaos, is to accompany the
infrastructure.
democratic processes.” However, voting systems
administered by states must still comply with federal
Proposed legislation in the 118th Congress to address voting
requirements, including HAVA, the Voting Rights Act of
systems includes S. 2344/H.R. 11, the Freedom to Vote
1965 (VRA), the National Voter Registration Act of 1993
Act, which would amend HAVA to include additional
(NVRA), and the First, Fourteenth, and Fifteenth
voting systems requirements and provide federal grants to
Amendments of the U.S. Constitution.
state and local governments for election infrastructure.
Among these requirements, the proposal would direct states
Executive Branch Developments in
to “seek to ensure” that any voting machine used in an
Securing Election Infrastructure
election for federal office is manufactured in the United
In 2017, the U.S. Department of Homeland Security (DHS)
States. Additionally, the bill would create an explicit private
designated election equipment as “critical infrastructure”
right of action for HAVA and amend 52 U.S.C. § 21081 to
deemed “so vital to the United States that the incapacity or
require states to replace paperless voting machines with
destruction of such systems and assets would have a
voting systems that provide voter-verified paper ballots for
debilitating impact on security, national economic security,
federal elections. Another example is H.R. 4563, the
national public health or safety, or any combination of those
American Confidence in Elections Act, which would,
matters[.]” According to DHS, the designation allows the
among other things, direct the EAC to issue voluntary
federal government to better prioritize election
considerations for states about various aspects of election
infrastructure in policy planning. However, the Department
administration such as voter registration list maintenance.
emphasized that the designation “does nothing to change
For additional information, consult CRS In Focus IF12453,
the role state and local governments have in administering
H.R. 4563, the American Confidence in Elections Act (ACE
and running elections.” Additionally, DHS, through its
Act): Legal Background, by L. Paige Whitaker.
Cybersecurity and Infrastructure Security Agency, provides
services to state and local governments to assist them in
Jimmy Balser, Legislative Attorney
reducing risk to their election systems and facilities.
IF12245

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Voting Systems and Federal Law

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