Presidential elections are high-stakes affairs that determine the course of our nation for the next four years. Every voter has a right to cast his or her ballot free from intimidation, coercion or threats from others. However, desperation can breed bad behavior and people will resort to despicable tactics to try and change the outcome of the election, including preventing voters from going to the polls. Federal and state law has little toleration for voter intimidation and offenders can face heavy fines or a lengthy incarceration for any violations.
There are several federal statutes that criminalize voter intimidation:
- “Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both.” 26 U.S.C. §594.
- “A person, including an election official, who in any election for federal office, knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate, threaten, or coerce, any person for registering to vote, or voting, or attempting to register or vote; urging or aiding any person to register to vote, to vote, or to attempt to register or vote; or exercising any right [to vote]; shall be fined… or imprisoned not more than 5 years, or both.” 52 U.S.C. §20511(1).
- “Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from voting or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as a poll watcher, or any legally authorized election official, in any primary, special, or general election… shall be fined… or imprisoned not more than one year, or both.” 18 U.S.C. §245(b)(1)(A).
- “No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under [the voting and elections law].” 52 U.S.C. §10307(b). A violation of this law can result in the U.S. Attorney General instituting civil proceedings against the offender. 52 U.S.C. §10308(d).
- “If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.” 42 U.S.C. §1985(3).
Michigan law also criminalizes voter intimidation as follows:
- A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state. A person who violates this section is guilty of a felony punishable by up to 5 years in prison or a fine up to $1,000.00, or both. MCL 168.932(a).
- A person shall neither disclose to any other person the name of any candidate voted for by any elector, the contents of whose ballots were seen by the person, nor in any manner obstruct or attempt to obstruct any elector in the exercise of his or her duties as an elector under this act. A person who violates this section is guilty of a felony punishable by up to 5 years in prison or a fine up to $1,000.00, or both. MCL 168.932(c).
Conduct that can be considered voter intimidation includes, but is not limited to, the following:
- Violent or aggressive behavior (or verbal threats of violence) around the polling site.
- Brandishing firearms or displaying firearms in an intimidating manner around voters or polling sites.
- Following voters to, from or inside the polling place.
- Disrupting or blocking voters from entering the polling place.
- Harassing or aggressively questioning voters about their preference or qualification to vote.
- Approaching voters at their vehicles entering the polling location parking lot.
- Confronting voters while wearing clothing to simulate military personnel, police officers or other government officials.
- Spreading false information regarding voter qualifications, voting procedures and consequences for exercising the right to vote.
On October 1, 2020, the Michigan Attorney General’s Office charged two men with intimidating voters, conspiracy to intimidate voters and using a computer to commit crimes when they allegedly created and funded a robocall targeting minority voters. These phone messages spread false claims to potential voters that personal information put on a mail-in ballot would result in that data being forwarded to law enforcement and debt collectors. Voter intimidation doesn’t have to be limited to suppressive activities on Election Day. Actions taken at ANY time to intimidate qualified electors from exercise their constitutional right to vote can lead the offenders to be charged and convicted.
Michigan prosecutors have a duty under the law to pursue charges whenever they receive credible information that an election law criminal offense has been committed. MCL 168.940. Likewise, the U.S. Department of Justice will pursue violations of federal election law to the fullest extent possible. It is NOT double jeopardy to be prosecuted for the same conduct in both state and federal court. You can expect, if convicted, that the judge will take these violations seriously and hand out harsh penalties to offenders attempting to subvert the democratic process. This danger makes it imperative to have a skilled lawyer in your corner as a balance against the immense resources of the state and federal government.
If you or a loved one is charged with an election law crime or any other offense, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe and Jedinak PLC and protect your rights today.