HR5046-118

1. Short title This Act may be cited as the Preventing Election Subversion Act of 2023.

2. Restrictions on removal of local election administrators in administration of elections for Federal office Congress makes the following findings: Congress has explicit and broad authority to regulate the time, place, and manner of Federal elections under the Elections Clause under article I, section 4, clause 1 of the Constitution of the United States, including by establishing standards for the fair, impartial, and uniform administration of Federal elections by State and local officials. The Elections Clause was understood from the framing of the Constitution of the United States to contain words of great latitude, granting Congress broad power over Federal elections and a plenary right to preempt State regulation in this area. As made clear at the Constitutional Convention and the State ratification debates that followed, this grant of congressional authority was meant to insure free and fair elections, promote the uniform administration of Federal elections, and preserve and restore to the people their equal and sacred rights of election.. In the founding debates on the Elections Clause, many delegates also argued that a broad grant of authority to Congress over Federal elections was necessary to check any abuses that might be made of the discretionary power to regulate the time, place, and manner of elections granted the States, including attempts at partisan entrenchment, malapportionment, and the exclusion of political minorities. As the Supreme Court has recognized, the Elections Clause empowers Congress to protect the elections on which its existence depends, Ex parte Yarbrough, 110 U.S. 651, 658 (1884), and protect the citizen in the exercise of rights conferred by the Constitution of the United States essential to the healthy organization of the government itself, id. at 666. The Elections Clause grants Congress plenary and paramount jurisdiction over the whole subject of Federal elections, Ex parte Siebold, 100 U.S. 371, 388 (1879), allowing Congress to implement a complete code for congressional elections. Smiley v. Holm, 285 U.S. 355, 366 (1932). The Elections Clause, unlike, for example, the Commerce Clause, has been found to grant Congress the authority to compel States to alter their regulations as to Federal elections, id. at 366–67, even if these alterations would impose additional costs on the States to execute or enforce. Association of Community Organizations for Reform Now v. Miller, 129 F.3d 833 (6th Cir. 1997). The phrase manner of holding elections in the Elections Clause has been interpreted by the Supreme Court to authorize Congress to regulate all aspects of the Federal election process, including notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and the making and publication of election returns. Smiley v. Holm, 285 U.S. 355, 366 (1932). The Supreme Court has recognized the broad substantive scope of the Elections Clause and upheld Federal laws promulgated thereunder regulating redistricting, voter registration, campaign finance, primary elections, recounts, party affiliation rules, and balloting. The authority of Congress under the Elections Clause also entails the power to ensure enforcement of its laws regulating Federal elections. [I]f Congress has the power to make regulations, it must have the power to enforce them. Ex parte Siebold, 100 U.S. 371, 387 (1879). The Supreme Court has noted that there can be no question that Congress may impose additional penalties for offenses committed by State officers in connection with Federal elections even if they differ from the penalties prescribed by State law for the same acts. Id. at 387–88. The fair and impartial administration of Federal elections by State and local officials is central to the successful working of this government, Ex parte Yarbrough, 110 U.S. 651, 666 (1884), and to protect the act of voting . . . and the election itself from corruption or fraud, id. at 661–62. The Elections Clause thus grants Congress the authority to ensure that the administration of Federal elections is free of political bias or discrimination and that election officials are insulated from political influence or other forms of coercion in discharging their duties in connection with Federal elections. In some States, oversight of local election administrators has been allocated to State Election Boards, or special commissions formed by those boards, that are appointed by the prevailing political party in a State, as opposed to nonpartisan or elected office holders. In certain newly enacted State policies, these appointed statewide election administrators have been granted wide latitude to suspend or remove local election administrators in cases where the statewide election administrators identify whatever the State deems to be a violation. There is no requirement that there be a finding of intent by the local election administrator to commit the violation. Local election administrators across the country can be suspended or removed according to different standards, potentially exposing them to different political pressures or biases that could result in uneven administration of Federal elections. The Elections Clause grants Congress the ultimate authority to ensure that oversight of State and local election administrators is fair and impartial in order to ensure equitable and uniform administration of Federal elections. A statewide election administrator may only suspend, remove, or relieve the duties of a local election administrator in the State with respect to the administration of an election for Federal office for inefficiency, neglect of duty, or malfeasance in office. Any local election administrator suspended, removed, or otherwise relieved of duties in violation of paragraph (1) with respect to the administration of an election for Federal office or against whom any proceeding for suspension, removal, or relief from duty in violation of paragraph (1) with respect to the administration of an election for Federal office may be pending, may bring an action in an appropriate district court of the United States for declaratory or injunctive relief with respect to the violation. Any such action shall name as the defendant the statewide election administrator responsible for the adverse action. The district court shall, to the extent practicable, expedite any such proceeding. Any action brought under this subsection must be commenced not later than 1 year after the date of the suspension, removal, relief from duties, or commencement of the proceeding to remove, suspend, or relieve the duties of a local election administrator with respect to the administration of an election for Federal office. In any action or proceeding under this subsection, the court may allow a prevailing plaintiff, other than the United States, reasonable attorney’s fees as part of the costs, and may include expert fees as part of the attorney’s fee. The term prevailing plaintiff means a plaintiff that substantially prevails pursuant to a judicial or administrative judgment or order, or an enforceable written agreement. A local election administrator who is subject to an administrative or judicial proceeding for suspension, removal, or relief from duty by a statewide election administrator with respect to the administration of an election for Federal office may remove the proceeding to an appropriate district court of the United States. Any order remanding a case to the State court or agency from which it was removed under this subsection shall be reviewable by appeal or otherwise. Whenever any administrative or judicial proceeding is brought to suspend, remove, or relieve the duties of any local election administrator by a statewide election administrator with respect to the administration of an election for Federal office, the statewide election administrator who initiated such proceeding shall deliver a copy of the pleadings instituting the proceeding to the Assistant Attorney General for the Civil Rights Division of the Department of Justice. The local election administrator against whom such proceeding is brought may also deliver such pleadings to the Assistant Attorney General. The United States may intervene in any administrative or judicial proceeding brought to suspend, remove, or relieve the duties of any local election administrator by a statewide election administrator with respect to the administration of an election for Federal office and in any action initiated pursuant to paragraph (2) or in any removal pursuant to paragraph (4). In reviewing any action brought under this section, a court of the United States shall not afford any deference to any State official, administrator, or tribunal that initiated, approved, adjudicated, or reviewed any administrative or judicial proceeding to suspend, remove, or otherwise relieve the duties of a local election administrator. Not later than 30 days after the suspension, removal, or relief of the duties of a local election administrator by a statewide election administrator, the Statewide election administrator shall submit to the Assistant Attorney General for the Civil Rights Divisions of the Department of Justice a report that includes the following information: A statement that a local election administrator was suspended, removed, or relieved of their duties. Information on whether the local election administrator was determined to be inefficient or to have engaged in neglect of duty or malfeasance in office. A description of the effect that the suspension, removal, or relief of the duties of the local election administrator will have on— the administration of elections and voters in the election jurisdictions for which the local election official provided such duties; and the administration of elections and voters in the State at large. Demographic information about the local election official suspended, removed, or relieved and the jurisdictions for which such election official was providing the duties suspended, removed, or relieved. Such other information as requested by the Assistant Attorney General for the purposes of determining— whether such suspension, removal, or relief of duties was based on unlawful discrimination; and whether such suspension, removal, or relief of duties was due to inefficiency, neglect of duty, or malfeasance in office. If a suspension, removal, or relief of duties of a local administrator described in paragraph (1) occurs during the period described in subparagraph (B), the report required under paragraph (1) shall be submitted not later than 48 hours after such suspension, removal, or relief of duties. The period described in this subparagraph is any period which begins 60 days before the date of an election for Federal office and which ends 60 days after such election. In this section, the following definitions apply: The term election has the meaning given the term in section 301(1) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101(1)). The term Federal office has the meaning given the term in section 301(3) of the Federal Election Campaign Act of 1971 (52 U.S.C. 30101(3)). The term local election administrator means, with respect to a local jurisdiction in a State, the individual or entity responsible for the administration of elections for Federal office in the local jurisdiction. The term statewide election administrator means, with respect to a State— the individual or entity, including a State elections board, responsible for the administration of elections for Federal office in the State on a statewide basis; or a statewide legislative or executive entity with the authority to suspend, remove, or relieve a local election administrator. Nothing in this section shall be construed to grant any additional authority to remove a local elections administrator beyond any authority provided under the law of the State.

3. Protections for voters on Election Day Subtitle A of title III of the Help America Vote Act of 2002 (52 U.S.C. 21081 et seq.) is amended by inserting after section 303 the following new section: No person, other than a State or local election official, shall submit a formal challenge to an individual’s eligibility to register to vote in an election for Federal office or to vote in an election for Federal office unless that challenge is supported by personal knowledge with respect to each individual challenged regarding the grounds for ineligibility which is— documented in writing; and subject to an oath or attestation under penalty of perjury that the challenger has a good faith factual basis to believe that the individual who is the subject of the challenge is ineligible to register to vote or vote in that election, except a challenge that is based on the race, color, ethnicity, national origin, or membership in a language minority group (as defined in section 14 of the Voting Rights Act of 1965 (52 U.S.C. 10310)) of the individual who is the subject of the challenge may not be considered to have a good faith factual basis for purposes of this paragraph. No person, other than a State or local election official, shall be permitted— to challenge an individual’s eligibility to vote in an election for Federal office on the date of the election on grounds that could have been made in advance of such date; or to challenge an individual’s eligibility to register to vote in an election for Federal office or to vote in an election for Federal office less than 10 days before the election unless the individual registered to vote less than 20 days before the election. This section shall apply with respect to elections for Federal office occurring on and after January 1, 2024. Section 401 of such Act (52 U.S.C. 21111) is amended by striking and 303 and inserting 303, and 303A. The table of contents of such Act is amended by inserting after the item relating to section 303 the following: 303A.Voter protection requirements(a)Requirements for challenges by persons other than election officials(1)Requirements for challengesNo person, other than a State or local election official, shall submit a formal challenge to an individual’s eligibility to register to vote in an election for Federal office or to vote in an election for Federal office unless that challenge is supported by personal knowledge with respect to each individual challenged regarding the grounds for ineligibility which is—(A)documented in writing; and(B)subject to an oath or attestation under penalty of perjury that the challenger has a good faith factual basis to believe that the individual who is the subject of the challenge is ineligible to register to vote or vote in that election, except a challenge that is based on the race, color, ethnicity, national origin, or membership in a language minority group (as defined in section 14 of the Voting Rights Act of 1965 (52 U.S.C. 10310)) of the individual who is the subject of the challenge may not be considered to have a good faith factual basis for purposes of this paragraph. (2)Prohibition on challenges on or near date of electionNo person, other than a State or local election official, shall be permitted—(A)to challenge an individual’s eligibility to vote in an election for Federal office on the date of the election on grounds that could have been made in advance of such date; or(B)to challenge an individual’s eligibility to register to vote in an election for Federal office or to vote in an election for Federal office less than 10 days before the election unless the individual registered to vote less than 20 days before the election.(b)Effective dateThis section shall apply with respect to elections for Federal office occurring on and after January 1, 2024.. Sec. 303A. Voter protection requirements..

303A. Voter protection requirements No person, other than a State or local election official, shall submit a formal challenge to an individual’s eligibility to register to vote in an election for Federal office or to vote in an election for Federal office unless that challenge is supported by personal knowledge with respect to each individual challenged regarding the grounds for ineligibility which is— documented in writing; and subject to an oath or attestation under penalty of perjury that the challenger has a good faith factual basis to believe that the individual who is the subject of the challenge is ineligible to register to vote or vote in that election, except a challenge that is based on the race, color, ethnicity, national origin, or membership in a language minority group (as defined in section 14 of the Voting Rights Act of 1965 (52 U.S.C. 10310)) of the individual who is the subject of the challenge may not be considered to have a good faith factual basis for purposes of this paragraph. No person, other than a State or local election official, shall be permitted— to challenge an individual’s eligibility to vote in an election for Federal office on the date of the election on grounds that could have been made in advance of such date; or to challenge an individual’s eligibility to register to vote in an election for Federal office or to vote in an election for Federal office less than 10 days before the election unless the individual registered to vote less than 20 days before the election. This section shall apply with respect to elections for Federal office occurring on and after January 1, 2024.