U.S. Department of Justice

Guidance Concerning
Federal Statutes Affecting
Methods of Voting
Published July 28, 2021

U.S. Department of Justice
The U.S. Department of Justice is committed to ensuring full compliance
with all federal laws regarding elections. This includes provisions of
federal law that apply to methods of casting a ballot.
Due to the COVID-19 pandemic, many voters were concerned about voting at a polling place on Election
Day in 2020. Large numbers of those voters took advantage of opportunities to vote by mail, or to cast an
early in-person ballot, and many jurisdictions around the country modiﬁed their prior procedures to
promote both the safety of their citizens and robust democratic participation. The 2020 election
produced record turnout, with over 160 million citizens casting ballots, a result that was all the more
impressive given the difﬁculties the pandemic posed to both voters and election administrators. Since
the 2020 election, some States have responded by permanently adopting their COVID-19 modiﬁcations;
by contrast, other States have barred continued use of those practices or have imposed additional
restrictions on voting by mail or early voting. In view of these developments, guidance concerning federal
statutes affecting methods of voting is appropriate.

The Department’s enforcement policy does not consider a jurisdiction’s re-adoption of prior voting laws
or procedures to be presumptively lawful; instead, the Department will review a jurisdiction’s changes in
voting laws or procedures for compliance with all federal laws regarding elections, as the facts and
circumstances warrant. See Memorandum from the Acting Attorney General (Feb. 3, 2021).

This document is meant to provide guidance regarding certain federal voting rights laws enforced by the
Department of Justice. Citations are provided to assist the reader but are not intended to be
comprehensive. The discussion provides guidance concerning the following topics:
▪

Federal Voting Rights Laws That Bear On How Citizens Cast Their Ballots . . . . . . . . . . . . . . Page 2

▪

FederalLaws Governing
Voting
ByMail and
Absentee
-Ballots
- . . . . . . . . . . . . . . . . . . . . . . . . . . Page 5
Federal
LawsGoverning
In Person
(Including
Early Voting) . . . . . . . . . . . . . . . . . . . . . . Page 9
- Voting
---

▪

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U.S. Department of Justice
Federal Voting Rights Laws That Bear On How Citizens Cast Their Ballots

Several federal statutes protect the rights of citizens throughout the voting process.

The Voting Rights Act (VRA), 52 U.S.C. §§ 10301-10702
The VRA protects the democratic process from racial discrimination and other inequalities.

Section 2 of the VRA, 52 U.S.C. § 10301, bars discrimination in voting on the basis of race, color, or
membership in a language minority group. This permanent, nationwide prohibition applies to any voting
qualiﬁcation or prerequisite to voting or standard, practice, or procedure. This includes rules specifying
the time, place, or manner of voting. Section 2 forbids both practices that result in voters being denied
equal access to the political process on account of race and those adopted or maintained because of
adverse effects on voters on account of race.

Section 202 of the VRA, 52 U.S.C. § 10502, protects the rights of citizens who have recently moved or
who are absent from the State on Election Day to participate in presidential elections.

Section 203 of the VRA, 52 U.S.C. § 10503, protects voters with limited English proﬁciency. It
establishes bilingual election requirements in jurisdictions identiﬁed by the U.S. Census Bureau as
having either a speciﬁed percentage or a speciﬁed number of voting-age citizens who have limited
English proﬁciency. Under Section 203, all information that is provided in English about the electoral
process must be provided in the language of members of the covered language group to the extent
needed to allow them to participate effectively in the electoral process and all voting-connected
activities.

Section 208 of the VRA, 52 U.S.C. § 10508, protects voters with disabilities and voters with literacy or
language limitations, including with difﬁculty reading or writing in English. It allows these voters to
have assistance in casting their ballots from a person of the voter’s choice, other than an employer or
union ofﬁcial.

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U.S. Department of Justice
Laws That Protect Voters With Disabilities
Three federal statutes protect the rights of voters with disabilities.

Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-34, protects voters with
disabilities. It requires State and local governments to ensure that qualiﬁed individuals with disabilities
have a full and equal opportunity to vote.

The Voting Accessibility for the Elderly and Handicapped Act (“VAEHA”), 52 U.S.C. §§ 20101-07, protects
both elderly voters and voters with disabilities. It establishes additional requirements to improve polling
place access for elderly individuals and people with disabilities during federal elections.

Title III of the Help America Vote Act (“HAVA”), 52 U.S.C. §§ 21081-21102, sets certain requirements for
federal elections. These include requirements for voting machine accessibility.

The Department has published guidance on these federal laws and the protections they provide to voters
with disabilities. See The Americans with Disabilities Act and Other Federal Laws Protecting the Rights
of Voters
-with
-Disabilities
- - (ada.gov)
-·

Law That Protects Service Members and Citizens Abroad

The Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. §§ 20301-11, protects
the voting rights of certain active-duty members of the uniformed services, their eligible family
members, and United States citizens residing overseas. It guarantees them the right to vote by absentee
ballot in elections for federal ofﬁce, and includes speciﬁc requirements designed to ensure that ballots
are sent to them in time to be completed, returned, and counted.

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U.S. Department of Justice
Laws That Protect All Voters Against Intimidation In The Voting Process.
Federal law prohibits intimidating people from voting or attempting to vote.

Section 11(b) of the VRA, 52 U.S.C. § 10307(b), provides that “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.”

Section 12 of the National Voter Registration Act of 1993 (“NVRA”), 52 U.S.C. § § 20511(1)(A), makes it
illegal for any person, “including an election ofﬁcial,” to “knowingly and willfully intimidate[], threaten[],
or coerce[], or attempt[] to intimidate, threaten, or coerce, any person for . . . registering to vote, or voting,
or attempting to register or vote” in any election for federal ofﬁce.

Section 131 of the Civil Rights Act of 1957, 52 U.S.C. § 10101(b), provides that “[n]o person, whether
acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt 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 federal ofﬁce.

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U.S. Department of Justice
Federal Laws Governing Voting By Mail And Absentee Ballots
Voting by mail was the most common means by which Americans cast their votes in 2020. Voting by mail
can be an effective way of ensuring that many citizens have a practical ability to participate in the
election process, given the various logistical difﬁculties that may preclude individuals from appearing at
a polling place on Election Day.

Currently, all States provide at least some voters with opportunities to vote by mail. And voting by mail
has grown steadily over time. States’ practices fall into four categories:
1.

Some jurisdictions mail ballots to all active registered voters.

2.

Some jurisdictions automatically mail such ballots to all voters who have joined permanent
vote-by-mail lists (sometimes called “absentee” voting lists, although voters need no longer
be absent from the jurisdiction to join them).

3.

Some jurisdictions provide vote-by-mail ballots on an election-by-election basis to any voter
who requests one for that election.

4.

A ﬁnal group of jurisdictions provide vote-by-mail ballots upon application only to voters who
meet a set of special eligibility requirements (e.g., age, absence from the jurisdiction, or some
other criterion). For example, under State law, in many jurisdictions citizens who are absent
while attending educational institutions away from their voting address or who are detained
in correctional facilities pending trial are entitled to cast their votes by mail. (In those States
where individuals who are detained pursuant to a criminal conviction are entitled to vote, they
too use vote by mail.)

Most jurisdictions allow voters who have received their ballots by mail (or who picked up absentee
ballots in person) to avoid the uncertainty of having to return their ballots by mail. They allow voters to
return completed ballots to an election ofﬁce, an early in-person voting location, a secure ballot drop
box, or a polling place on Election Day (where the vote-by-mail voter is not required to stand in line to
receive a ballot). These alternatives are particularly critical for voters who receive ballots late, have
limited time to bring a ballot to a postal facility, or lack access to regular mail.

5 | Guidance Concerning Federal Statutes Affecting Methods of Voting

U.S. Department of Justice
Federal Law Mandates Certain Forms Of Voting By Mail.
Section 202 of the VRA requires all States to allow qualiﬁed residents who are absent from their election
district on Election Day to cast an absentee ballot for President and Vice President. 52 U.S.C. § 10502(d).
Section 202 also gives voters who will be absent on Election Day until seven days beforehand to request a
mail ballot for President and Vice President and until the close of the polls on Election Day to return it. Id.
Finally, Section 202 gives voters who move less than thirty days before an election for President or Vice
President a right to vote absentee in the jurisdiction from which the voter has moved. 52 U.S.C. §
10502(e).

UOCAVA provides speciﬁc mail ballot protections for certain members of the uniformed services absent
from home due to active-duty service, their eligible family members, and United States citizens residing
overseas. See 52 U.S.C. § 20310(1), (5). Among other requirements, States must:

▪

Accept UOCAVA ballot requests received at least 30 days before a federal election, by mail
or electronically, including on a prescribed federal postcard application.

▪

Send absentee ballots to UOCAVA voters by mail or electronically, according to the
preference of the voter, at least 45 days before the election (as long as the voter requested
the ballot at least 45 days before Election Day).

▪

Permit UOCAVA voters to cast absentee ballots in all federal elections.

▪

Accept a prescribed federal write-in absentee ballot from UOCAVA voters.

52 U.S.C. § 20302(a).
Moreover, for any election for Federal ofﬁce, States must provide ballots to UOCAVA voters who
request a ballot any time during the year when an election is occurring. They must do this without
regard to whether the request came before the ﬁrst date on which the State would accept or process
ordinary applications for mail ballots during that year. 52 U.S.C. § 20306.

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U.S. Department of Justice
Federal Law Protects Voters During States’ Vote By Mail Processes.
Beyond afﬁrmative requirements to States to facilitate some citizens’ ability to vote by mail, other
federal laws also govern how States conduct vote by mail.

Section 2 of the VRA forbids jurisdictions from establishing rules or regulations concerning voting by
mail that are intended to deny or abridge citizens’ right to vote on account of race or that result in an
election system’s not being equally open to voters of all races. This prohibition reaches rules involving
the availability of vote by mail, deadlines, application and ballot formalities, or drop boxes for returning
ballots.

Section 203 of the VRA imposes requirements on covered jurisdictions to conduct a bilingual vote by
mail program. This includes translation of all written materials and provision of oral bilingual assistance
regarding ballot applications and ballot return. 28 C.F.R. 55.15. Covered jurisdictions that provide all
active voters with a mail ballot may provide all materials in applicable minority languages. Otherwise,
they must develop an effective targeting system for minority language materials. 28 C.F.R. 55.17,
55.18(a).

Section 208 of the VRA allows voters with disabilities and voters with literacy or language limitations,
including with difﬁculty reading or writing in English, to receive assistance in casting an absentee ballot
from a person of the voter’s choice, excluding employers and union ofﬁcials.

The Help America Vote Act (“HAVA”), 52 U.S.C. § 21081(a)(1)(B), requires that mail-in ballots for federal
elections notify the voter of the effect of casting multiple votes for an ofﬁce and contain instructions on
how to correct a ballot before it is cast and counted. This includes telling voters how to get a
replacement ballot if necessary.

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U.S. Department of Justice
The ADA. For many voters with disabilities, voting by mail on a paper ballot does not provide an
opportunity to vote privately and independently, as required by Title II of the ADA. 42 U.S.C. §§ 12131-34.
The ADA requires States to provide auxiliary aids and services to voters with disabilities so that they may
have an equal opportunity to vote. 28 C.F.R. § 35.160.

The anti-intimidation and anti-interference statutes described above —Section 11(b) of the VRA,
Section 12 of the NVRA, and Section 131 of the Civil Rights Act of 1957 —all apply in full force to citizens
seeking to vote by mail in covered elections. They each prohibit intimidation of, and interference with,
voters seeking to vote or returning ballots and those permitted by law to assist them.

8 | Guidance Concerning Federal Statutes Affecting Methods of Voting

U.S. Department of Justice
Federal Laws Governing In-Person Voting (Both Early and Election Day)
States—including those that provide mail ballots to all active voters—generally conduct some form of
in-person voting on Election Day in federal elections. However, many States now allow Election Day
voting at vote centers, where any voter in a jurisdiction may receive and cast a regular ballot, rather than
limiting a voter to an assigned polling location. This both improves voter convenience and reduces the
number of provisional ballots that are not counted because they were cast in the wrong precinct.

Early voting has formed an increasingly large percentage of the total votes cast in federal elections.
Early in-person voting comes in two forms: early voting and in-person absentee. Early voting is typically
available to all eligible voters, whereas in-person absentee voting is typically limited to voters qualiﬁed to
cast a mail ballot.

Federal law speciﬁcally prescribes the date for the federal general election. 2 U.S.C. §§ 1, 7; 3 U.S.C. § 1.
Federal law does not speciﬁcally set forth uniform procedures for locations and hours of voting on
Election Day. Federal law also does not speciﬁcally prescribe uniform procedures for dates, hours and
locations for primary elections. Nor does federal law speciﬁcally prescribe uniform procedures for early
voting for federal elections.

However, the provisions of the VRA discussed above do govern States’ decisions about both early voting
and in-person voting on Election Day.

Section 2 of the VRA prohibits jurisdictions from eliminating or declining to establish in-person voting or
limiting hours and locations of in-person voting if such decisions are intended to impede voters on
account of race from casting a ballot or will result in an election system that is not equally open to voters
on account of race.

9 | Guidance Concerning Federal Statutes Affecting Methods of Voting

U.S. Department of Justice
Section 203 of the VRA requires covered jurisdictions to translate relevant written materials used at
early voting sites and to ensure that oral bilingual assistance is available for early in-person voting to
exactly the same degree that such materials and assistance are required on Election Day. 28 C.F.R.
55.15, 55.18(d)-(e).

Section 208 of the VRA also allows voters with disabilities and voters with limited-English proﬁciency to
receive assistance from a person of the voter’s choice (other than an employer or union ofﬁcial) when
voting in person, whether during an early voting period or on Election Day.

The ADA contains a number of protections for voters casting their ballots in person, whether during early
voting or on Election Day.

The ADA requires that States and local governments provide voters with disabilities a full and equal
opportunity to vote in person. 42 U.S.C. § 12132; 28 C.F.R. § 35.130. This generally requires that
jurisdictions:
▪

Allow voters with disabilities to vote independently and privately in a manner that is equal
to that afforded to others, 42 U.S.C. §§ 12132; 28 C.F.R. § 35.130(a).

▪

Ensure that voting locations are physically accessible and free of barriers, 28 C.F.R. §§
35.130(b)(4), 35.149-150.

▪

Provide accessible voting booths to voters with disabilities, 28 C.F.R. § 35.130(b)(7).

▪

Permit voters to be accompanied by a service animal, 28 C.F.R. § 35.136.

▪

Provide auxiliary aids or services necessary to ensure effective communication, including
providing an accessible ballot, 28 C.F.R. § 35.160.

▪

Receive assistance/support from a person of their choice or a poll worker, 28 C.F.R. §
35.130(b)(7).

▪

Provide reasonable modiﬁcations to policies, practices, or procedures when necessary, 28
C.F.R. § 35.130(b)(7).

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U.S. Department of Justice
The Department has also published general guidance regarding ADA compliance at polling places. U.S.
Dep’t of Justice, ADA Checklist for Polling Places (2016), available at www.ada.gov/votingchecklist.pdf;
U.S. Dep’t of Justice, Solutions for Five Common ADA Access Problems at Polling Places (2014), available
at https://www.ada.gov/ada_voting/voting_solutions_ta/polling_place_solutions.pdf.
-----·---· --HAVA also establishes a number of requirements for election administration at in-person voting locations
during federal elections.

Each in-person polling place must be equipped with at least one direct recording electronic voting
system or other voting system equipped for individuals with disabilities. 52 U.S.C. § 21081(a)(3)(B). HAVA
requires voting systems to provide alternative language accessibility in jurisdictions covered by Section
203 of the VRA. 52 U.S.C. § 21081(a)(4).

Voting systems used for in-person voting where ballots are processed immediately should allow voters to
verify their vote before the ballot is cast and counted, notify the voter of overvotes, and provide voters
with an opportunity to change the ballot before it is cast and counted. 52 U.S.C. § 21081(a)(1)(A).

On the other hand, in-person absentee voting locations that merely collect completed and sealed
absentee ballot envelopes that are opened and processed at a central count location should notify voters
of the effect of casting multiple votes for an ofﬁce and provide instructions on how to correct a ballot
before it is cast and counted (including issuance of a replacement ballot if necessary). 52 U.S.C. §
21081(a)(1)(B).

Election ofﬁcials at in-person voting locations must also permit individuals who declare themselves
eligible and registered to vote—but who do not appear in the poll book or who election ofﬁcials assert
not to be eligible voters—to cast a provisional ballot according to the detailed procedures in Section 302
of HAVA. 52 U.S.C. § 21082.

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U.S. Department of Justice
HAVA also requires the posting of additional information at each polling place on the day of each election
for federal ofﬁce. 52 U.S.C. § 21082(b).

The anti-intimidation and anti-interference statutes described above —Section 11(b) of the VRA,
Section 12 of the NVRA, and Section 131 of the Civil Rights Act of 1957 —prohibit intimidation, threats,
and interference related to casting a vote in person (whether early or on Election Day).

Thus, while much of the law governing how eligible citizens cast their ballots is governed by the law of
the State in which they live, federal law provides critical protections to all voters. Because voting has
long been recognized as “preservative of all rights,” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), it is
essential that all eligible citizens’ right to cast a ballot, and have that ballot counted, be protected.

If jurisdictions have questions about the constraints federal law places on the methods of voting they are
using or propose to use, they should contact the Voting Section of the Civil Rights Division.

If you would like to report a potential voting rights violation, you can use the Civil Rights Division's online
complaint form to submit a report or call (800) 253-3931.

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U.S. Department of Justice

Federal Law Constraints
on Post-Election “Audits”
Published July 28, 2021

U.S. Department of Justice
The U.S. Department of Justice is committed to ensuring full compliance
with all federal laws regarding elections. This includes those provisions
of federal law that govern the retention and preservation of election
records or that prohibit intimidation of, or interference with, any
person’s right to vote or to serve as an election ofﬁcial.
The Department is also committed to ensuring that American elections are secure and reﬂect the choices
made on the ballots cast by eligible citizens. “The November 3rd election was the most secure in
American history,” according to a Joint Statement issued by federal and state ofﬁcials and released by
the federal Cybersecurity & Infrastructure Security Agency. In many jurisdictions, there were automatic
recounts or canvasses pursuant to state law due to the closeness of the election results. None of those
state law recounts produced evidence of either wrongdoing or mistakes that casts any doubt on the
outcome of the national election results.

In recent months, in a number of jurisdictions around the United States, an unusual second round of
examinations have been conducted or proposed. These examinations would look at certain ballots,
election records, and election systems used to conduct elections in 2020. These examinations,
sometimes referred to as “audits,” are governed, in the ﬁrst instance, by state law. In some
circumstances, the proposed examinations may comply with state law; in others, they will not. But
regardless of the relevant state law, federal law imposes additional constraints with which every
jurisdiction must comply. This document provides information about those federal constraints, which are
enforced by the Department of Justice.

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U.S. Department of Justice
Constraints Imposed by the Civil Rights Act of 1960

The Civil Rights Act of 1960, now codiﬁed at 52 U.S.C. §§ 20701-20706, governs certain “[f]ederal
election records.” Section 301 of the Act requires state and local election ofﬁcials to “retain and
preserve” all records relating to any “act requisite to voting” for twenty-two months after the conduct
of “any general, special, or primary election” at which citizens vote for “President, Vice President,
presidential elector, Member of the Senate, [or] Member of the House of Representatives,” 52 U.S.C. §
20701. The materials covered by Section 301 extend beyond “papers” to include other “records.”
Jurisdictions must therefore also retain and preserve records created in digital or electronic form.

The ultimate purpose of the Civil Rights Act’s preservation and retention requirements for federal
elections records is to “secure a more effective protection of the right to vote.” State of Ala. ex rel.
Gallion v. Rogers, 187 F. Supp. 848, 853 (M.D. Ala. 1960) (citing H.R. Rep. 956, 86th Cong., 1st Sess. 7
(1959)), aff’d sub nom. Dinkens v. Attorney General, 285 F.2d 430 (5th Cir. 1961) (per curiam). The Act
protects the right to vote by ensuring that federal elections records remain available in a form that
allows for the Department to investigate and prosecute both civil and criminal elections matters under
federal law. The Federal Prosecution of Election Offenses, Eighth Edition 2017 explains that “[t]he
detection, investigation, and proof of election crimes – and in many instances Voting Rights Act
violations –often depend[s] on documentation generated during the voter registration, voting,
tabulation, and election certiﬁcation processes.” Id. at 75. It provides that “all documents and records
that may be relevant to the detection or prosecution of federal civil rights or election crimes must be
maintained if the documents or records were generated in connection with an election that included
one or more federal candidates.” Id. at 78.

The Department interprets the Civil Rights Act to require that covered elections records “be retained
either physically by election ofﬁcials themselves, or under their direct administrative supervision.”
Federal Prosecution of Elections Offenses at 79. “This is because the document retention
requirements of this federal law place the retention and safekeeping duties squarely on the shoulders

2 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
of election ofﬁcers.” Id. If a state or local election authority designates some other individual or
organization to take custody of the election records covered by Section 301, then the Civil Rights Act
provides that the “duty to retain and preserve any record or paper so deposited shall devolve upon such
custodian.” 52 U.S.C. § 20701.

Therefore, if the original election ofﬁcial who has custody of records covered by the Act hands over
those election records to other ofﬁcials (for example, to legislators or other ofﬁceholders) or the ofﬁcial
turns over the records to private parties (such as companies that offer to conduct “forensic
examinations”), the Department interprets the Act to require that “administrative procedures be in
place giving election ofﬁcers ultimate management authority over the retention and security of those
election records, including the right to physically access” such records. Id. In other words, the
obligation to retain and preserve election records remains intact regardless of who has physical
possession of those records. Jurisdictions must ensure that if they conduct post-election ballot
examinations, they also continue to comply with the retention and preservation requirements of Section
301.

There are federal criminal penalties attached to willful failures to comply with the retention and
preservation requirements of the Civil Rights Act. First, Section 301 itself makes it a federal crime for
“[a]ny ofﬁcer of election” or “custodian” of election records to willfully fail to comply with the retention
and preservation requirements. 52 U.S.C. § 20701. Second, Section 302 provides that any “person,
whether or not an ofﬁcer of election or custodian, who willfully steals, destroys, conceals, mutilates, or
alters any record or paper” covered by Section 301’s retention and preservation requirement is subject
to federal criminal penalties. Id. § 20702. Violators of either section can face ﬁnes of up to $1000 and
imprisonment of up to one year for each violation.

Election audits are exceedingly rare. But the Department is concerned that some jurisdictions
conducting them may be using, or proposing to use, procedures that risk violating the Civil Rights Act.
The duty to retain and preserve election records necessarily requires that elections ofﬁcials maintain
the security and integrity of those records and their attendant chain of custody, so that a complete and

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U.S. Department of Justice
uncompromised record of federal elections can be reliably accessed and used in federal law
enforcement matters. Where election records leave the control of elections ofﬁcials, the systems for
maintaining the security, integrity and chain of custody of those records can easily be broken. Moreover,
where elections records are no longer under the control of elections ofﬁcials, this can lead to a
signiﬁcant risk of the records being lost, stolen, altered, compromised, or destroyed. This risk is
exacerbated if the election records are given to private actors who have neither experience nor expertise
in handling such records and who are unfamiliar with the obligations imposed by federal law.

4 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
Constraints Imposed by the Federal Laws Prohibiting Intimidation
Federal law prohibits intimidating voters or those attempting to vote. For example, Section 11(b) of the
Voting Rights Act of 1965 provides that “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….” 52 U.S.C. § 10307(b). Similarly,
Section 12 of the National Voter Registration Act of 1993 makes it illegal for any person, “including an
election ofﬁcial,” to “knowingly and willfully intimidate[], threaten[], or coerce[], or attempt to intimidate,
threaten, or coerce, any person for . . . registering to vote, or voting, or attempting to register or vote” in
any election for federal ofﬁce. Id. § 20511(1)(A). Likewise, Section 131 of the Civil Rights Act of 1957
provides that “[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten,
coerce, or attempt 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 federal ofﬁce. 52 U.S.C. § 10101(b).

The Attorney General is authorized to ﬁle a civil action seeking preventative relief, including a temporary
or permanent injunction, against any person who engages in actions that violate these statutes. See 52
U.S.C. §§ 10308(d); 20510(a). And there are criminal penalties as well. See, e.g., id. § 10308(a); 18 U.S.C. §§
241, 242, 594; see generally Federal Prosecution of Election Offenses, at 33-38, 49-54, 56-58.

Judicial decisions have established that voter intimidation need not involve physical threats. In certain
contexts, suggesting to individuals that they will face adverse social or legal consequences from voting
can constitute an impermissible threat. Here are a few examples of the types of acts that may constitute
intimidation:

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U.S. Department of Justice
▪

Sending a letter to foreign-born Latino registered voters warning them that “if they voted in
the upcoming election their personal information would be collected … and … could be
provided to organizations who are ‘against immigration’” was potentially intimidating. See
United States v. Nguyen, 673 F.3d 1259 (9th Cir. 2012).

▪

Having police ofﬁcers take down the license plate numbers of individuals attending voter
registration meetings contributed to intimidating prospective voters. See United States v.
McLeod, 385 F.2d 734 (5th Cir. 1967).

▪

Sending robocalls telling individuals that if they voted by mail, their personal information
would become part of a public database that could be used by police departments to track
down old warrants and credit card companies to collect outstanding debts could constitute
intimidation. See Nat’l Coal. on Black Civic Participation v. Wohl, 498 F. Supp. 3d 457 (S.D.N.Y.
2020).

▪

Linking individual voters to alleged illegalities in a way that might trigger harassment could
constitute intimidation. See League of United Latin Am. Citizens - Richmond Region Council
4614 v. Pub. Int. Legal Found., 2018 WL 3848404, at *4 (E.D. Va. Aug. 13, 2018).

▪

Conducting a “ballot security” program in which defendants stand near Native American
voters discussing Native Americans who had been prosecuted for illegally voting, follow
voters out of the polling places, and record their license plate numbers might constitute
intimidation. See Daschle v. Thune, No. 4:04 Civ. 04177 (D.S.D. Nov. 1, 2004).

See also United States v. North Carolina Republican Party, No. 5:92-cv-00161 (E.D.N.C. Feb. 27, 1992)
(approving a consent decree in a case where the United States alleged that it violated Section 11(b) to
send postcards to voters in predominantly African American precincts falsely claiming that voters were
required to have lived in the same precinct for thirty days prior to the election and stating that it is a
“federal crime to knowingly give false information about your name, residence or period of residence to
an election ofﬁcial”).

1

1 While voter intimidation need not involve physical threats, federal law of course prohibits using “force or threat of force” to intimidate or
interfere with, or attempt to intimidate or interfere with, any person’s “voting or qualifying to vote” or serving “as a poll watcher, or any legally
authorized election ofﬁcial, in any primary, special, or general election.” 18 U.S.C. § 245(b)(1)(A). The Deputy Attorney General recently issued
Guidance Regarding Threats Against Election Workers.

6 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
There have been reports, with respect to some of the post-2020 ballot examinations, of proposals to
contact individuals face to face to see whether the individuals were qualiﬁed voters who had
actually voted. See, e.g., Cyber Ninjas Statement of Work ¶ 5.1 (proposing to select three precincts
in a large urban county to collect information from individuals through “a combination of phone calls
and physical canvassing”).

This sort of activity raises concerns regarding potential intimidation of voters. For example, when
such investigative efforts are directed, or are perceived to be directed, at minority voters or minority
communities, they can have a signiﬁcant intimidating effect on qualiﬁed voters that can deter them
from seeking to vote in the future. Jurisdictions that authorize or conduct audits must ensure that
the way those reviews are conducted has neither the purpose nor the effect of dissuading qualiﬁed
citizens from participating in the electoral process. If they do not, the Department will act to ensure
that all eligible citizens feel safe in exercising their right to register and cast a ballot in future
elections.

If jurisdictions have questions about the constraints federal law places on the kinds of post-election
audits they can conduct, they should contact the Voting Section of the Civil Rights Division. If
citizens believe a jurisdiction has violated the Civil Rights Act’s election record retention and
preservation requirements, or believe they have been subjected to intimidation, they can use the
Civil Rights Division's online complaint form to report their concerns or call (800) 253-3931.

7 | Federal Law Constraints on Post-Election “Audits”