Overview of Federal Criminal Laws Prohibiting Threats and Harassment of Election Workers
Legal Sidebari
Overview of Federal Criminal Laws
Prohibiting Threats and Harassment of
Election Workers
Updated April 4, 2024
Following the 2020 elections, the Department of Justice (DOJ) reported a significant increase in threats of
violence toward individuals who administer elections, identifying in 2022 more than 1,000 reported
incidents of threats and harassment targeting election workers for their work. This Legal Sidebar provides
an overview of federal laws prohibiting threats and harassment against individuals responsible for
administering elections, including election officials, workers, and volunteers at the federal, state, and local
levels. The Sidebar also provides a brief overview of potential constitutional concerns related to the
federal prosecution of individuals for threats and harassment to election workers, and considerations for
Congress if it considers supplementing existing laws that address threats to election workers. (Further
information on election worker safety and privacy policies, including a summary of relevant legislation
introduced in the 118th Congress, can be found in this CRS Insight.)
Federal Law Overview
Constitutional Authority
The Elections Clause, in Article 1, Section 4, of the U.S. Constitution states, “The Times, Places and
Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as
to the Places of [choosing] Senators.” While the states have primary responsibility for administering
elections, the federal government maintains significant authority over elections including safeguarding the
safety and integrity of congressional elections.
A parallel constitutional provision addressing presidential elections, Article II, Section 1, cl. 4, provides
that Congress may determine the “time” of choosing presidential electors and the day the electors shall
cast their votes, with that day being the same throughout the United States. This clause does not delegate
to the states any power to prescribe the time, place, and manner of electors casting votes in a presidential
election. The Supreme Court has held that “[t]he importance of [the presidential] election and the vital
character of its relationship to and effect upon the welfare and safety of the whole people cannot be too
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strongly stated,” and that “Congress, undoubtedly, possesses that power ... to preserve the ... institutions
of the general government from impairment or destruction.... ” Congress, exercising its authority under
this provision, has enacted legislation establishing an Election Day. The power to appoint electors and
how those appointments are made, however, belongs to the states under the Electors Clause, in Article II,
Section 1, cl. 2.
Congress does not have general regulatory authority over state and local elections, but it may still exercise
its power over such entities in several contexts. For example, Congress has the authority to prevent
unconstitutional voting discrimination in a state or local election. Congress’s authority to legislate
regarding these various issues derives, in addition to its Article I powers, principally from the Fourteenth
and Fifteenth Amendments. Relying on its Spending Clause authority, Congress might also condition the
receipt of federal funds for state or local elections on compliance with federal requirements.
Relevant Statutes and Recent Cases Related to Violence Against Election Workers
Federal jurisdiction over election crimes, such as fraud, campaign finance, and voter suppression, can be
established through a variety of means including, but not limited to: the presence of a candidate for
federal office on the ballot in the election in question, interference with the work of election officials,
interference with a constitutional right, or the use of interstate commerce in the accomplishment of a
crime.
In contrast, the laws available to federal law enforcement for protecting election workers from threats and
harassment depend on the defendant’s conduct. Section 245 of Title 18 addresses interference in a broad
array of federal protected activities including voting, and prohibits threats to poll watchers and election
officials in Section 245(b)(1)(A). Additionally, Section 245(b)(4) provides protection from interference in
voting or participating in other election activities on account of race, color, religion, or national origin.
This provision prohibits using force or threat of force to willfully injure, intimidate, or interfere with “any
person because he is or has been, or in order to intimidate such person ... from participating, without
discrimination on account of race, color, religion or national origin” in voting or election activities. In
2024, individuals pleaded guilty to violating Section 245 for carrying out shootings that targeted the
residences of election officials in 2022.
Section 245 requires the Attorney General, the Deputy Attorney General, the Associate Attorney General,
or a specially designated Assistant Attorney General to certify that federal prosecution of a case is in the
public interest and necessary to secure substantial justice. According to the Senate report accompanying
legislation adding Section 245, the certification process was consistent with a federal practice that: “even
where Federal law has been adopted, enforcement generally has been deferred to the States wherever
possible.” DOJ guidance further indicates that in practice, the certification process considers whether state
or local law enforcement “either cannot or will not[] effectively enforce the applicable state law, thereby
creating an overriding need for federal intervention” to uphold the public’s interest in addressing election
threats.
Other federal laws that may address threats or harassment of election workers or other government
officials administering elections include:
• 18 U.S.C. § 115, which prohibits threats “to assault, kidnap or murder” federal officials,
employees, or their family members with the “intent to impede, intimidate, or interfere
with” the performance of official duties, or in retaliation for official duties;
• 18 U.S.C. § 610, which prohibits intimidating or threatening federal employees to engage
in or to not engage in “any political activity”;
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• 18 U.S.C. § 876, which prohibits knowingly sending by mail “any communication ...
addressed to any other person and containing any threat to kidnap any person or any
threat to injure” and includes additional penalties for mailing threats to federal officials;
• 18 U.S.C. § 1503, which prohibits “corruptly or by threats or force, or by any threatening
letter or communication, influences, obstructs, or impedes or endeavors to influence,
obstruct, or impede, the due administration of justice”;
• 18 U.S.C. § 1505, which prohibits the obstruction of justice, including by threats, for any
proceeding before a U.S. agency or a congressional investigation;
• 18 U.S.C. § 1512, which prohibits threatening or intimidating a witness in an official
proceeding to withhold testimony, tamper with evidence, or prevent someone from
reporting a federal offense to law enforcement;
• 52 U.S.C. § 20511, which provides criminal penalties for any person, including an
election official from, among other things, “knowingly and willfully intimidat[ing],
threat[ening], or coerc[ing] or attempt[ing] to intimidate, threaten, or coerce any person
for ... urging or aiding any person” in voting or registering to vote in a federal election;
and
• 52 U.S.C. § 10307, which prohibits persons acting under the color of law or otherwise
from intimidating, threatening, or coercing any person “for urging or aiding any person to
vote or attempt to vote” or for enforcing the right to vote.
Conduct by Government Officials
Some federal laws address interference with elections by those acting under the color of law. In addition
to 18 U.S.C. § 245 discussed above, which applies “whether or not [the offender is] acting under color of
law,” laws specifically dealing with the conduct of government officials or those using government
resources include:
• 18 U.S.C. § 592, which prohibits stationing “troops or armed men” by military or federal
officials at the polls in a general or special election except when necessary “to repel
armed enemies of the United States”;
• 18 U.S.C. § 593, which prohibits members of the military from interfering “in any
manner with an election officer’s discharge of his duties”;
• 18 U.S.C. § 595, which prohibits government employees from using official authority in
connection with federally financed activity to interfere with or affect a federal election;
and
• 18 U.S.C. § 598, which prohibits the use of congressional appropriations “for the purpose
of interfering with, restraining, or coercing” any person in the exercise of the right to
vote.
Threats or Intimidation Against Voters
Federal laws that directly address the intimidation of voters may also be relevant in addressing crimes
targeting election workers if voters were also intimidated from voting by the conduct at issue. For
additional information, consult this CRS Legal Sidebar. Criminal laws addressing the intimidation of
voters include, in addition to 18 U.S.C. § 245 and several other laws previously mentioned:
• 18 U.S.C. § 241, which makes it unlawful to “conspire to injure, oppress, threaten, or
intimidate any person” exercising a constitutional right, including the right to vote;
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• 18 U.S.C. § 242, which prohibits willfully acting under government authority to deprive
individuals of the right to vote; and
• 18 U.S.C. § 594, which prohibits threatening or intimidating any person for the purpose
of interfering with the right to vote, among others.
Relevant Laws of General Applicability
Section 875(c) of Title 18 prohibits, among other things, “transmit[ting] in interstate or foreign commerce
any communication containing any threat” to kidnap or injure another person. The interstate or foreign
commerce requirement of Section 875(c) restricts its use to cases where an individual has transmitted a
communication containing a threat across state or country lines. Courts have held that the requirement
that the threat be communicated in interstate commerce should be read “literally: once the communication
crosses state lines, however briefly, the jurisdictional element is satisfied even if the sender and recipient
are both located in the same state.” As to the mental state requirement, the Supreme Court has not
specified the mens rea for Section 875(c), though it has stated that while, “negligence is not sufficient” to
support a conviction, the scienter requirement is satisfied “if the defendant transmits a communication for
the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” In
some recent cases, federal prosecutors have relied on 18 U.S.C. § 875(c) to address threats against
election workers and other public officials. For example, in 2022, DOJ charged an individual under
Section 875(c) for allegedly posting communications on the website Craigslist threatening election
officials in Georgia. The individual pleaded guilty and was sentenced in November 2023 to two years in
prison. Another individual pleaded guilty to two counts of making a threatening interstate communication
under Section 875(c) for sending threatening voicemail messages to an election official and the Office of
the Arizona Attorney General. He was sentenced to over two years in prison.
In July 2022, an individual was charged with making a bomb threat to an election official in violation of
18 U.S.C. § 844(e) and perpetrating a bomb hoax in violation of 18 U.S.C. § 1038(a), as well as
communicating a threat in violation of 18 U.S.C. § 875(c). Section 844(e) provides criminal penalties of
up to 10 years for an individual who “willfully makes any threat ... concerning an attempt or alleged
attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or
destroy any building, vehicle, or other real or personal property by means of fire or an explosive.” The
individual pleaded guilty in August 2023 to one count of making a threatening interstate communication
and was sentenced to three years and six months imprisonment in March 2024.
Other laws that have been used to charge individuals for threatening election officials include 47 U.S.C. §
223, which prohibits, among other things, knowingly making an interstate communication and
transmitting “any comment, request, suggestion, proposal, image, or other communication which is
obscene” with the intent to abuse, threaten, or harass another person; 18 U.S.C. § 2261A(1), which
prohibits interstate stalking; and 18 U.S.C. § 2261A(2) which prohibits cyberstalking. Section 2261A(1)
and (2) prohibitions require an intent to kill, injure, harass, or intimidate another person, and that the
conduct “places that person in reasonable fear of the death of” or “serious bodily injury to” themselves, a
family member, partner, or pet. The statute also forbids the same conduct if it “causes, attempts to cause,
or would be reasonably expected to cause substantial emotional distress.”
Sentencing Guidelines
United States Federal Sentencing Guidelines enhancements may also be relevant in cases addressing
threats against election officials. The Guidelines make adjustments to the base offense level for threat or
harassment offenses on account the specific characteristics of the crime. For example, the Guidelines’
official victim adjustment, § 3A1.2, provides enhancements of up to 3 to 6 sentencing levels “[i]f the
victim was a government officer or employee; a former government officer or employee; or a member of
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the immediate family of a person described ... and the offense of conviction was motivated by such
status.... ”
First Amendment Considerations
In a criminal case where a defendant’s speech is at issue, the constitutionality of the prosecution may
depend on whether the speech is considered a “true threat.” The First Amendment states, “Congress shall
make no law ... abridging the freedom of speech.... ” The First Amendment protects most forms of
political hyperbole, safeguarding the public’s interest in debate on issues that is, in the words of the
Supreme Court, “uninhibited, robust, and wide-open, and that [] may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials.” For example, threats of
violence directed at government officials do not necessarily reach the level of a true threat. Conversely,
true threats outside of constitutional protection can occur when the speaker “means to communicate a
serious expression of an intent to commit an act of unlawful violence to a particular individual or group of
individuals.”
At times, law enforcement has struggled to assess when speech crosses over from protected political
hyperbole to a true threat. The Supreme Court has held that a speaker does not need to intend to carry out
violence to create a true threat. The speech may be proscribed when the speaker communicates the threat
with the intent to place the victim in fear of bodily harm or death. For additional information on
unprotected speech, see this CRS In Focus.
Considerations for Congress
The targeting of election workers and recent correlated poll worker shortages in several states may make
the current federal statutory protections for election workers an area of interest for Congress. Several
proposals introduced in the 118th Congress include provisions establishing additional federal offenses for
crimes against election workers, expanding existing offenses to include more types of election workers
and election activities, and increasing penalties (for example, H.R. 11/S. 1/S. 2344, S. 1318, H.R. 1583,
H.R. 3130/S. 1487). Legislation introduced in the 118th Congress would also create or increase statutory
privacy protections for election officials (for example, H.R. 11/S. 1 /S. 2344, S. 1318). Many of these
proposals include some combination of related policies, such as increased funding for the safety of
election workers.
Legal developments may also inform Congress’s perception of the effectiveness of current criminal laws
in deterring the harassment of election workers. In 2021, DOJ launched the Election Threats Task Force
“to address the rise in threats against election workers, administrators, officials, and others associated
with the electoral process.” In August 2023, DOJ announced enforcement actions in thirteen cases. DOJ’s
increased focus in this area and resulting judicial decisions may help clarify how existing federal statutes
apply to threats against election officials.
Author Information
Jimmy Balser
Legislative Attorney
Congressional Research Service
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Disclaimer
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