Issues & Trends
Examining the Evolving Threats to Electoral Integrity
February 15, 2022
The right to vote is a fundamental feature of our democracy, and threats to the integrity of our voting system are continually changing. In part three of a five-part D.C. Bar CLE series designed to assist attorneys general in combating corruption, experts addressed the investigation and prosecution of election crimes.Presented in partnership with the National Association of Attorneys General, the series draws upon The Anticorruption Manual: A Guide for State Prosecutors. Although election crime was once a cyclical concern, in recent years it has become a year-round issue, said Tim VanderGiesen, chief of the Public Corruption Unit of the Miami-Dade State Attorney’s Office and author of the manual’s chapter on election crimes. This is partly due to a more expansive interpretation of what constitutes election crime, he said. Previously, the focus was on ballot-related crimes, but today VanderGiesen and others increasingly view campaign finance law violations and other kinds of offenses to be election crimes.
VanderGiesen offered several pieces of advice for those investigating and prosecuting election crimes, including that they regularly familiarize themselves with the applicable election codes, which can change frequently, and coordinate with local election officials.
In addition to training for the specific legal and factual issues that arise, VanderGiesen said state prosecutors should also be prepared to carefully consider public perception regarding the timing of actions like investigation and prosecution. “What is the public going to see or perceive to be the damage done to the electoral process?” he asked.
The federal system has procedures to ensure that investigations are not conducted within a certain window of time prior to an election to avoid influencing the outcome. Local officials should exercise similar restraint and maintain an awareness of the motivation for filing complaints to ensure they aren’t calculated to disrupt, VanderGiesen said.
VanderGiesen also stressed the importance, particularly in urban areas, of providing language resources to voters and developing a sensitivity to cultural issues to serve the entire community and ensure the integrity of the process for all.
Alongside threats to the institution of voting, faculty experts also discussed the increasing risks to elected officials, poll workers, and others involved in elections. Sean Mulryne, deputy director of the Election Crimes Branch, Public Integrity Section, of the U.S. Department of Justice, gave an overview of a DOJ project developed to address the dangers that election workers face.
The Election Threats Task Force receives and assesses allegations and reports of threats against election workers through partnerships with U.S. Attorneys Offices and FBI field offices. Each local FBI field office has an Election Crime Coordinator (ECC), Mulryne said. Once a complaint is received, typically through the FBI hotline at 1-800-CALL-FBI or the website tips.fbi.gov, the ECC forwards the complaint to the task force, and they jointly determine whether the threat is appropriate for additional investigation.
The communications, their issuer, the target, and the context are analyzed to determine whether a true threat exists, a process that Mulryne said is very fact- and case-specific. The totality of the circumstances — employing legal standards to determine whether statements generate culpability and assessing the degree of threat — determines the outcome, he said.
A question-and-answer segment drew inquiries about the kinds of statements that might create liability, at which point panelist Benjamin Allee contributed his perspective as a defense attorney. Allee, a partner at Yankwitt LLP who formerly served as a federal prosecutor in the Southern District of New York, said there is a fine line between First Amendment protected speech and criminal threats, stressing the distinction between reprehensible behavior and criminal conduct. “You can read some really horrible, despicable communications, but … some of that ends up feeling a little beside the point because sometimes the focus in intake as a prosecutor or even on this side of it for me [as a defense attorney] becomes, Would a reasonable person perceive an imminent physical harm to come from this?”
Click here to register for the final session in the anticorruption series, “Bid Rigging & Public Contracts.”
