Criminal Liability Is the Wrong Tool for Enforcing Election Laws

Yesterday, Georgia Governor Brian Kemp signed into law a massive overhaul of Georgia’s elections laws. The 96‐​page bill addresses a wide range of subjects — amongst other things, it puts strict limits on mail‐​in voting, expands access to early in‐​person voting, adds new ID requirements, and creates new regulations for poll workers at voting stations. Election law is not my field of expertise, and I will leave to others to debate whether the changes to election procedures themselves are necessary or prudent. But what I am sure about is that enforcing mundane election procedures through criminal liability is unnecessary, unjust, and needlessly deters people from exercising both their freedom of speech and their right to vote. And in that respect, if nothing else, the Georgia law expands on and exacerbates what was already a serious problem. Let’s start by looking at one of the most controversial and widely discussed provisions of the new law — the criminal prohibition on passing out food and drink to voters waiting in line. Here’s what the operative language of the new bill actually says (the bolded text is the new provision): I have seen some suggestion that the intent behind this new provision was not to prohibit distributing food or drink generally, but rather to prohibit distributing food or drink for the specific purpose of soliciting votes. Perhaps that was the intent, but that’s not what the bill actually says. Note that the law, as amended, specifically and separately says that “no person shall solicit votes in any manner or by means or method” and that no person shall “give … food and drink, to an elector.” The most natural, semantic interpretation here is that giving food and drink to an elector is its own independent prohibition, because this clause isn’t limited by the “soliciting votes” clause that precedes it. Moreover, the bill goes on to clarify that this new provision does not prohibit “making available self‐​service water from an unattended receptacle to an elector waiting in line to vote.” That naturally suggests that the previous provision means what it says — that any distribution of food and drink besides a self‐​service water station is prohibited. So yes, this particular criticism of the bill, though it might sound hyperbolic, is entirely accurate. Whether or not it was the product of sloppy drafting, the law as written plainly prohibits giving food and water to voters waiting in line. But even more egregiously, this new prohibition — like all the pre‐​existing prohibitions on interacting with voters in or around a polling place — is enforced through criminal penalties. This section of the bill amends Georgia Code Section 21–2-414, which says that “[a]ny person who violates this Code section shall be guilty of a misdemeanor.” And while a “misdemeanor” might not sound all that serious, this isn’t some sort of “third‐​degree misdemeanor” that’s punishable by a small fine or community service. Georgia Code Section 17–10-3 generally provides that all misdemeanors are punishable by a fine of up to $1000 and incarceration in a county jail for up to a year. It is self‐​evidently absurd for Georgia to prohibit, in any way at all, the mere act of giving food and water to voters. But even if some of the activities on this list should, in principle, be prohibited in and around polling locations, there’s no good reason that any mundane violations of this law should be enforced through the threat of incarceration. For example, this statute already prohibited “distribut[ing] or display[ing] any campaign material” and “solicit[ing] signatures for any petition.” The Supreme Court has held that narrowly drawn, viewpoint‐​neutral prohibitions on such activities in the immediate area surrounding a polling place are constitutional, so it’s not inherently impermissible for Georgia to regulate such activities. But imagine what typical violations of these prohibitions might look like:

• A voter who forgets to remove their campaign button when they get in line to vote.
• An overzealous campaign staffer who hands out pamphlets too close to the polling location.
• A citizen who thinks a voting line would be a convenient place to gather signatures for a petition on whatever issue they’re interested in.

It is reasonable (though hardly self‐​evident) to suggest that these activities shouldn’t be allowed at a polling location. If so, election officials could certainly ask any such individuals to cease this activity. If they refuse to do so, they could be removed from the polling location and/​or issued a fine. But does anyone genuinely think that the appropriate response to these activities is putting someone in jail ? Moreover, the “giving food and water” provision is far from the only new criminal prohibition in the Georgia law. The bill also created new elaborate requirements for handling absentee ballots, and then states that “[h]andling a completed absentee ballot application by any person or entity other than as allowed in this subsection shall be a misdemeanor.” This means, for example, that if you attempt to return a completed absentee ballot on behalf of a friend or co‐​worker (but not a “relative”), you could go to jail. The bill also makes it a misdemeanor to take a photograph of a completed ballot — which voters actually have the constitutional right to do, at least in some cases. Sadly, Georgia is not alone in using criminal penalties to enforce mundane election and voting rules. Consider the case of Crystal Mason, a Texas citizen who was sentenced to five years in prison for submitting a provisional ballot while in a supervised release program following a tax‐​fraud conviction. Ms. Mason made an honest mistake. After her original term of incarceration was finished, she believed she was eligible to vote. Even though she was not on the list of registered voters, an election official expressly invited her to submit a provisional ballot, which she did. She was unaware, however, that because she was still in her term of supervised release, Texas considered her ineligible to vote. For this single mistake, Ms. Mason was convicted and sentenced to five years in prison for attempting to cast an illegal vote. A court of appeals upheld her conviction, acknowledging that she made an honest mistake, but nevertheless holding that “the fact that she did not know she was legally ineligible to vote was irrelevant to her prosecution.” The Cato Institute filed an amicus brief in support of Ms. Mason’s petition to the Texas Court of Criminal Appeals, and hopefully she will get the justice she deserves. But regardless of what happens here, her case is a stark illustration of how states are far too quick to rely on criminal prosecution as the default mechanism for enforcing election laws. Incarceration is an extraordinary remedy. Short of execution, taking away someone’s freedom and locking them in a cage — and thereby separating them from their family, removing them from their job, and subjecting them to the routine horrors of life in prison — is the most severe action the state can take against a citizen. It should be treated as a last resort, appropriate only for the most dangerous and anti‐​social individuals, and subject to robust procedural checks. This means that criminal liability should play little to no role in enforcing election laws. Measured criminal penalties may be appropriate in instances of outright bribery or intentional fraud, but they should never be used to enforce mundane polling‐​place regulations, as the Georgia law does. Nor should they ever be used in response to unintentional violations of voter‐​registration procedures. Such a heavy‐​handed approach to enforcement needlessly discourages people from exercising both their right to vote and their right to engage in election‐​related speech. Whatever disagreements we might have about voter IDs, or mail‐​in ballots vs. in‐​person voting, we should at least agree on that much.