by Kira Lerner, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]
July 19, 2022

Second in a two-part series. See part one here.

Since the 2020 election, Iowa has enacted one new felony and two new misdemeanor offenses targeting election officials.

The state’s omnibus election law, passed in 2021, criminalizes election officials who fail to perform their duties, don’t adequately maintain voter lists, or interfere with other people performing their duties in or near a polling place. The first offense carries a potential five years in prison.

Roxanna Moritz, formerly the chief election officer in Scott County, Iowa, cited the law as one of the main reasons she decided to retire early, despite winning reelection in November 2020 for her fourth term.

“When they signed that new law, I was done,” she said. “It’s too much anymore, the constant out to get us.”

Iowa is one of 12 states that have enacted 35 new criminal penalties targeting election officials since 2020, according to an analysis by States Newsroom. The others are Alabama, Arizona, Colorado, Florida, Kansas, Kentucky, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, and Wyoming. Of the 35 new penalties, 31 were enacted in Republican-controlled states.

The new penalties are part of a larger effort to criminalize people involved in the election process. Since the 2020 election, 26 states have enacted, expanded, or increased the severity of 120 election-related criminal penalties, according to the analysis and as detailed in part one of this two-part series.

Of those new penalties, 102 of them — the vast majority — were enacted in 18 Republican-controlled states: Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, West Virginia, and Wyoming.

[See all of the new criminal penalties here]

For Moritz, the new law exacerbated what she described as an already toxic environment for election officials due to the pandemic, threats and harassment. An added factor was the Democratic state auditor’s investigation of her decision to give poll workers hazard pay in 2020.

She made the decision to offer them more money, she said, without approval from the Scott County Board of Supervisors, which sets election worker compensation under Iowa law.

Under Iowa’s new omnibus voting law, election law violations like Moritz’s decision to give her poll workers an extra $3 to $5 an hour for working during the pandemic become potential felonies. Moritz said she is still waiting for results of the auditor’s investigation.

“Here I am, it’s COVID, I’m just trying to do the right thing and pay my poll workers,” she said, and then she faced potential criminal consequences. “If it’s a felony, I lose my voting rights. I lose my job.”

New felonies, misdemeanors

States Newsroom analyzed every voting-related bill passed by state legislatures since the 2020 election, creating a database of every new criminal offense codified into law. In total, states enacted more than 60 new felonies and more than 50 new misdemeanors.

The new offenses criminalize actions taken by everyone involved in an election, including voters, people who assist voters, and election officials. The criminal penalties range from low-level misdemeanors to felonies punishable by up to 20 years in prison.

Bobby Kaufmann, the Republican floor manager of Iowa’s bill, explained to Bloomberg why the new penalties against election officials are justified.

“The bill makes sure that any future elections official that commits election misconduct will face the same punishment that you or I or the general public would if we did the same thing,” he said.

But David Becker, the executive director and founder of the Center for Election Innovation & Research, which works with election officials of both parties to make elections more secure and accessible, said there’s no need for the new criminal penalties.

“These are coming out now in complete defiance of reality,” he said, describing the 2020 election as a great achievement of American democracy.

“Instead of throwing a parade for these people and thanking them for their service, they’re being targeted with these new criminal penalties and new police forces focused on their efforts, because of a lie.”

New laws all over

In Kansas, a new law prohibits election officials from falsifying information in a ballot custody affidavit, which is used to account for all ballots, including those that are provisional, spoiled, blank, or counted. Violators risk felony prosecution.

A new Texas law threatens election judges with a state jail felony, which carries up to two years in jail, for providing a voter with a form for an affidavit in order to cast a provisional ballot if the judge enters information on the form knowing it’s false.

And in Arizona, county recorders and other election officials are subject to a felony prosecution if they knowingly deliver or mail an early ballot to a person who has not requested one for that election.

They’re also subject to felony prosecution if they knowingly fail to reject an application for registration when it’s not accompanied by a proof of citizenship, despite how state law currently conflicts with federal law on the legality of proof of citizenship requirements.

New laws in Oklahoma, Alabama, Kansas, and Kentucky also target election officials who accept private funds for conducting elections.

In Texas, Isabel Longoria, the former lead election administrator in Houston, filed a lawsuit against the state over the provision in the state’s new election law that makes it a crime for election officials to encourage voters to vote by mail, according to the complaint, and imposes severe penalties and harsh fines as punishment.

“It is frustrating for me and absolutely discouraging that I cannot talk about one of the core functions of my job,” she said. “It’s completely bonkers. You are cutting out at least one third of my job.”

“It feels to me like an outright attack on election officials just trying to do their job,” she added.

The issue was especially stark when tens of thousands of mail-in ballot applications across the state were rejected in advance of the primary this year because ID numbers on ballots didn’t match what the counties had on file.

“Election officials that are in the best position to get people over that hurdle are feeling that they can’t say as much as they’d like to say because they might be accused of criminal conduct,” said Sean Morales-Doyle, the acting director of the voting rights program at the liberal-leaning Brennan Center for Justice.

Quitting time

The new laws are likely to dissuade people from becoming election officials or may lead more current election officials to quit.

According to a survey by the Brennan Center, 1 in 5 local election officials said they’re likely to leave their job before the 2024 election.

“This is debilitating for democracy,” Becker said. “These are bullying tactics. These are efforts to try to scare election officials away from doing what is their duty and either chase them out of office or convince them to violate their oaths.”

Becker described election officials as exhausted and questioning if the job is worth it. “We’re going to see the potential of losing an entire generation of professional election officials, which is bad in and of itself because we rely on them to run smooth elections, but who replaces them?”

Longoria, who resigned from her post at the end of June, said she worries that nobody else in Texas will want to step up to fill her role.

“There’s very real concern about getting a good pool of candidates for my replacement because of these laws,” she said. “Who wants to jump into a situation where, from the beginning, you’re criminalized?”

Like voter fraud, criminal misconduct by election officials is exceedingly rare and when it does occur, it has been caught by laws already in place before 2020.

Mesa County, Colorado Clerk Tina Peters, a Republican, is facing 10 criminal counts of conspiracy for allegedly sharing sensitive information from voting machines on the internet with conspiracy theorists. Her deputy, Belinda Knisley, is facing criminal charges as well.

Targeting people who help voters

Many of the new laws target people who assist voters, including nonprofit groups that do voter registration and friends and neighbors who may help a voter by bringing their mail-in ballot to a drop box for them.

Five states (Texas, Florida, Georgia, Kansas and South Carolina) enacted bans on ballot harvesting, or having one person gather and deliver other voters’ mail-in ballots. Arkansas, Iowa, Florida and Oklahoma elevated or expanded their already existing laws.

Republicans argue that ballot harvesting empowers political groups to send people to collect mass numbers of ballots, allowing for tampering. But voting advocates say that the laws have a discriminatory effect and particularly harm rural voters and voters who may live far from a drop box or post office, like Native Americans.

“It’s just the case that in the regular course of their lives, Native Americans pick up and drop off mail for each other,” Jacqueline De León, an attorney for the Native American Rights Fund, told the Washington Post in 2020.

In Yuma County, Arizona, Guillermina Fuentes, a 66-year-old Latina woman, pleaded guilty in early June to a felony for collecting four early ballots from voters who were not family members and depositing them into a ballot box on primary Election Day in August 2020.

She’s scheduled to be sentenced in September and prosecutors are seeking a one-year prison sentence. If convicted, Fuentes will have to give up her elected position and will lose her voting rights.

Prosecutors claimed that Fuentes, who was formerly the mayor of San Luis, Arizona, and serves as an elected member of the school board, used her position as a Democratic Party leader to operate a ballot harvesting scheme and fill out ballots on voters’ behalf. But prosecutors ultimately dropped all charges against Fuentes associated with filling out ballots other than her own.

Other new laws in other states target people and groups that assist voters in different ways. In Kansas, nonprofits halted voter registration drives last year after the legislature passed a law making it a felony for people to engage in activity that might make someone think they are an election official.

At least one district attorney has said she won’t prosecute anyone under the law because it’s subjective and weakens voter engagement efforts.

“It is too vague and too broad and threatens to create felons out of dedicated defenders of democracy,” the district attorney, Suzanne Valdez of Douglas County, told the Kansas Reflector.

Other new laws carry potential felonies for unsealing an absentee ballot that’s not your own, observing someone who is voting unless that person is authorized, engaging in activity that could be considered electioneering, or accepting anything of value in exchange for delivering an absentee ballot.

Georgia’s ban on line relief efforts is especially harmful for Black voters, who on average wait longer to cast a ballot than non-white voters.

“You’re seeing the criminal justice system being used as an apparatus to deter rightful voting,” said John Cusick, assistant counsel at the NAACP Legal Defense Fund, who is suing Georgia over the line relief ban. . “It’s putting more burden on folks when the state should be encouraging record turnout and making it easier and more accessible.”

More power to investigate, prosecutee

The new criminal laws come as states are giving law enforcement and other government officials expanded powers to investigate and prosecute election crimes.

In Florida, Gov. Ron DeSantis signed a bill in April creating the Florida Office of Election Crimes and Security to crack down on voter fraud. Lawmakers appropriated more than $2.6 million and 25 positions for the new agency and additional investigators to work in the Florida Department of Law Enforcement.

In testimony submitted to the Florida Senate in February, during debate of the bill, the NAACP Legal Defense Fund argued that the new office will serve to chill Black voters, especially given Florida’s deep history of using law enforcement to intimidate voters of color.

“It is difficult to understand a push to advance provisions that will likely result in increased voter intimidation, excessive criminalization, and needless law enforcement involvement in the voting process,” the group wrote.

A handful of other states also empowered new agencies or government officials to investigate, prosecute, or report voter fraud.

In Georgia, the legislature gave the Georgia Bureau of Investigation authority to investigate election crimes and issue relevant subpoenas.

In a separate bill, Georgia lawmakers gave the attorney general authority to establish and maintain a telephone hotline for voters to file complaints and allegations of voter intimidation and illegal election activities. The attorney general can then determine if each complaint or report should be investigated or prosecuted.

Iowa and Arizona also gave the attorney general more power to investigate election misconduct.

Experts warn that the new enforcement power, along with the more than 100 new or elevated election crimes codified into law across the country, will serve to chill voters who may not want to risk violating the law in order to cast a ballot.

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.