Over the past several months, the Trump administration has taken unprecedented steps to try to impose new rules governing the November midterm elections and engineer final results. Federal courts—including the U.S. Supreme Court—have repeatedly and almost uniformly blocked the administration’s efforts as unconstitutional or illegal. This includes a federal judge who recently enjoined the U.S. Department of Homeland Security from sending agents door to door to question Americans about their citizenship and voting history, finding that their conduct likely violated the Voting Rights Act due to risks of voter intimidation.
Yet a distinct possibility remains that the administration could order federal employees to more deeply insert themselves into election processes that are principally the states’ domain. If this occurs, federal personnel would expose themselves—at the personal level—to a wide range of legal jeopardy, both criminal and civil. Defenses involving legal immunity would likely fail in most cases. Legal remedies, which already exist at the federal and state levels, could far outlast the current administration and result in severe consequences such as personal financial penalties, job termination, and even prison time.
Federal laws expose federal personnel to substantial legal jeopardy
The U.S. Constitution clearly and explicitly grants the power to administer elections to states, with Congress playing an additional role. The executive branch has no authority under the Constitution, statutes, or other mechanisms to alter election rules, even in the face of alleged national security threats or the discredited myth of widespread voter fraud.
Numerous federal statutes specifically prohibit and penalize executive branch overreach in elections. For example, 18 U.S.C. 592 makes it a crime for any federal official to order, bring, or keep troops or armed federal agents at polling locations except where necessary to repel armed enemies of the United States. Criminal penalties include fines of up to $250,000, five years in prison, and disqualification from any federal office.
Other federal statutes make it a crime to intimidate voters; use “official authority” to interfere with or affect an election; conspire to intimidate someone from exercising their rights; deprive someone of their rights “under color of law”; or obstruct or delay the delivery of mail, including ballots. The Voting Rights Act has a provision, 52 U.S.C. 10307(b), barring intimidation “under color of law or otherwise,” with no specific intent required and a private right of action, as applied in a recent federal court decision. The Ku Klux Klan Act of 1871, codified at 42 U.S.C. 1985, allows a voter to bring a civil suit for damages for conspiracy-related actions that intimidate voters in a federal election.
Most of these statutes, namely the criminal laws, carry a range of substantial consequences, including monetary penalties and prison time of up to 10 years. Federal personnel do not have blanket immunity from federal charges. The U.S. Department of Justice (DOJ) under a future administration could prosecute federal personnel, even if that is unlikely to occur during the current administration. A particularly noteworthy fact is that most of the crimes described above have a five-year statute of limitations, which means the DOJ has until 2031 to bring prosecutions—far beyond the end of the current administration. Moreover, the federal government may refuse to provide a lawyer for a federal employee and choose not to pay an employee’s financial penalties.
Other accountability mechanisms, many of which are not shielded by a presidential pardon, include:
- The Office of Personnel Management, in partnership with specific home agencies, can make determinations about the suitability of federal personnel, including termination and “debarment” from future federal employment based on past illegal or grossly inappropriate acts.
- The Hatch Act prohibits federal personnel from using their position to affect election results, with penalties including termination and debarment.
- Inspectors general can investigate agency personnel for breaking the law and refer them to the DOJ for prosecution.
- State bars can investigate federal government attorneys and take away their law licenses.
See also
State laws expose federal personnel to substantial legal jeopardy
For more than 200 years, states have prosecuted federal personnel for state crimes, an important tool to check abuses of power, especially when the federal government refuses to enforce federal law against its own personnel. As the State Democracy Research Initiative at the University of Wisconsin Law School and others have discussed, states have an extensive array of laws to protect elections, exposing federal officials to substantial criminal and civil legal jeopardy—even though state prosecutors have rarely used this authority. State prosecutors act independently of the DOJ, and crucially, unlike with federal convictions, a president cannot pardon a federal employee’s state-level conviction.
In the criminal law area, state statutes across the nation prohibit voter intimidation. Many states also ban guns at polling places and other election-related locations, per research from the Brennan Center for Justice, which concluded that although these prohibitions often contain exceptions for state law enforcement, “they don’t always exempt federal law enforcement or troops.” California criminalizes hiring or arranging for any uniformed law enforcement officer, including federal agents, to be at election-related locations. States also have strict criminal laws, without law enforcement exceptions, governing who can handle ballots, election-related materials, and voting machines, including chain-of-custody requirements. States such as California even have penalties of imprisonment for some of these crimes. To help flex these legal authorities, local prosecutors across the nation formed a coalition earlier this year to support state prosecutions of federal law enforcement officers who violate state laws.
Some states also allow their citizens to bring civil lawsuits directly against federal employees. For example, New York and Connecticut recently created private causes of action for monetary damages against any person who intimidates voters—whether acting under color of law or not—as part of their state voting rights acts. Another pathway exists in the approximately 10 states that have “converse 1983” statutes, which allow voters whose federal constitutional rights were violated by a federal employee to sue that employee personally for damages. Some states have gone further by “omitting qualified immunity or clearly stating it doesn’t apply,” while legal actions alleging violations of the U.S. Constitution make it much more difficult for the government to use the 1988 Westfall Act to shield an employee from monetary damages.
Federal officials may raise various defenses depending on the type of legal proceeding. For example, in criminal cases, they may argue principally that the Constitution’s supremacy clause confers blanket immunity on them. But the Supreme Court recognized almost a century ago that states’ right “to make and enforce their own laws is equal to the right of the federal government” and immunity only results when the federal official’s actions were authorized by federal law and “necessary and proper” in carrying out their duties. Committing a federal crime cannot be within the scope of a federal employee’s legal duties. Ultimately, even if a federal employee were to force removal of a state’s prosecution into federal court, a successful prosecution there would still result in a state-level conviction, which a president cannot pardon.
Conclusion
In light of the administration’s ongoing use of the federal government to impermissibly interfere in elections, federal personnel should be keenly aware that their improper involvement in election-related activities would expose them to substantial criminal and civil penalties for many years. Federal and state laws provide ample legal tools to hold federal officials accountable for any role they play in violating Americans’ rights to free and fair elections.