Protect Democracy Applauds New Legislation to Combat Election Subversion, Increase Judicial Protection for Voting Rights

Washington, DC—Protect Democracy applauds Senators Klobuchar and Ossoff, and Representative Mondaire Jones for introducing two pieces of legislation that would help promote Americans’ participation in free and fair elections across our country.

The first bill, the Protecting Election Administration from Interference Act, sponsored by Senator Klobuchar, joined by Senators Merkley, Ossoff, and Padilla, is a critical bulwark against potential election subversion and an important step towards ensuring that American voters can have confidence that their elections will be administered fairly, transparently, and free from partisan interference.

“The federal government has a critical role to play in ensuring that elections across the country are administered fairly, honestly, and free from partisan interference,” said Jessica Marsden, Counsel at Protect Democracy, “The Protecting Election Administration from Interference Act responds to the overwhelming majority of voters who want Congress to take action to protect election officials and the vote-counting process from partisan interference and subversion.”

The second bill, the Right to Vote Act, sponsored by Senator Ossoff and Rep. Jones, and co-sponsored by Senators King, Klobuchar, Padilla, and Warnock, would create a statutory right to vote in federal elections and require courts to apply heightened scrutiny to laws, policies, or other government actions that burden that right—particularly when a government takes steps that make it harder to cast a ballot or have that ballot counted.  This bill would address gaps in the existing constitutional framework in which courts rarely consider burdens on the ability to vote to be severe enough to merit serious scrutiny.

“The ability to cast a ballot and have that ballot counted is a critical feature of our democracy—and one that deserves robust protection in the courts,” said Genevieve Nadeau, Counsel with Protect Democracy. “This bill fills an unfortunate gap in the current legal landscape by creating a statutory right to vote in federal elections and requiring governments that burden that right to meet a high bar to justify doing so. It offers voters important legal protections and a meaningful way to enforce their rights in court.”

Both bills are an important component of a federal legislative solution to help protect against partisan election subversion. These subversion efforts include 216+ bills introduced in 41 states that enable partisan interference with election administration, as documented in A Democracy Crisis in the Making, a recent report from Protect Democracy, States United Democracy Center, and Law Forward.

Both pieces of legislation respond to overwhelming, bipartisan voter support for legislation to secure ballots, combat voter intimidation, and protect election results from partisan interference. A recent poll by Protect Democracy and Secure Democracy found that “84% of voters nationwide would support a new federal law to ensure every eligible citizen’s right to have their ballot counted and included in the totals of votes, and 85% of voters would support a law to ensure that officials cannot influence election procedures to benefit a particular candidate or political party.”

Additional information on the Protecting Election Administration from Interference Act: This legislation would protect election administration across the country through three mechanisms.

First, it would expand and clarify existing protections in federal law against intimidation of voters and election officials, including by clarifying that attempting to interfere with the voting, counting, and certification process is a federal crime subject to criminal penalties. According to a recent poll, 79% of voters support “allow[ing] election officials to request that a court step in to protect them from intimidation.”

Second, it would strengthen protections for ballots, other election records, and election equipment to prevent partisan actors from compromising the preservation, security, and privacy of cast ballots and election equipment. 89% of voters support “requir[ing] states to preserve and secure all documents associated with federal elections.”

Finally, it would allow for judicial review to ensure the preservation of election records and equipment, including by allowing the Department of Justice (DOJ) and individual candidates to bring lawsuits to force compliance with election record requirements.

Additional Information on the Right to Vote Act: This legislation addresses a weakness in the current legal landscape applicable to voting rights by creating a statutory right to vote in federal elections and to have that vote counted, and requiring robust judicial scrutiny of burdens on that right.

Other federal laws that allow people to seek judicial protection of the right to vote require proof that a state or local government discriminated against them for a reason that is forbidden by the law, such as their race or ethnicity. This legislation makes clear that eligible citizens have a right to vote that cannot be burdened unnecessarily.

Under the bill, to justify burdens that substantially impair the right to vote, governments must prove that they are significantly furthering an important, particularized interest. And in cases of retrogression, where governments impose burdens that make it harder to cast a ballot or have that ballot counted, governments must show they employed the least restrictive means of furthering that interest. The bill would also require governments to provide clear and convincing evidence to support their justifications.

This bill is supported by a group of organizations dedicated to protecting voting rights and free and fair elections, including the ACLU, Campaign Legal Center, Demos, Fair Fight Action, LatinoJustice PRLDEF, Lawyers’ Committee for Civil Rights Under Law, NAACP Legal Defense and Educational Fund, Inc. (LDF), Protect Democracy, People For the American Way, and the Southern Coalition for Social Justice.

To learn more about the Right to Vote Act from Senator Ossoff, click here. Click here for a one-page overview of the Right to Vote Act from Representative Mondaire Jones, the legislation’s sponsor in the House of Representatives.