[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 2575 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 2575
To amend the Help America Vote Act of 2002 to provide increased
protections for election workers and voters in elections for Federal
office, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 27, 2023
Mr. Warnock (for himself, Ms. Klobuchar, Ms. Baldwin, Mr. Merkley, Mr.
Fetterman, Mr. Welch, Ms. Hirono, Mr. Wyden, Mr. Warner, Mr. Durbin,
and Mrs. Feinstein) introduced the following bill; which was read twice
and referred to the Committee on Rules and Administration
_______________________________________________________________________
A BILL
To amend the Help America Vote Act of 2002 to provide increased
protections for election workers and voters in elections for Federal
office, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preventing Election Subversion Act
of 2023''.
SEC. 2. RESTRICTIONS ON REMOVAL OF LOCAL ELECTION ADMINISTRATORS IN
ADMINISTRATION OF ELECTIONS FOR FEDERAL OFFICE.
(a) Findings.--Congress makes the following findings:
(1) 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.
(2) 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.''.
(3) 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.
(4) 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).
(5) 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).
(6) 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.
(7) 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.
(8) 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.
(9) 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.
(10) 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.
(11) 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.
(12) 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.
(13) 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.
(b) Restriction.--
(1) Standard for removal of a local election
administrator.--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.
(2) Private right of action.--
(A) In general.--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.
(B) Statute of limitations.--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.
(3) Attorney's fees.--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.
(4) Removal of state proceedings to federal court.--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.
(5) Right of united states to intervene.--
(A) Notice to attorney general.--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.
(B) Right to intervene.--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).
(6) Review.--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.
(c) Reports to the Department of Justice.--
(1) In general.--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) A statement that a local election administrator
was suspended, removed, or relieved of their duties.
(B) Information on whether the local election
administrator was determined to be inefficient or to
have engaged in neglect of duty or malfeasance in
office.
(C) A description of the effect that the
suspension, removal, or relief of the duties of the
local election administrator will have on--
(i) the administration of elections and
voters in the election jurisdictions for which
the local election official provided such
duties; and
(ii) the administration of elections and
voters in the State at large.
(D) 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.
(E) Such other information as requested by the
Assistant Attorney General for the purposes of
determining--
(i) whether such suspension, removal, or
relief of duties was based on unlawful
discrimination; and
(ii) whether such suspension, removal, or
relief of duties was due to inefficiency,
neglect of duty, or malfeasance in office.
(2) Expedited reporting for actions within 30 days of an
election.--
(A) In general.--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.
(B) Period described.--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.
(d) Definitions.--In this section, the following definitions apply:
(1) Election.--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)).
(2) Federal office.--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)).
(3) Local election administrator.--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.
(4) Statewide election administrator.--The term ``statewide
election administrator'' means, with respect to a State--
(A) 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
(B) a statewide legislative or executive entity
with the authority to suspend, remove, or relieve a
local election administrator.
(e) Rule of Construction.--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.
SEC. 3. PROTECTIONS FOR VOTERS ON ELECTION DAY.
(a) Requirements.--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:
``SEC. 303A. VOTER PROTECTION REQUIREMENTS.
``(a) Requirements for Challenges by Persons Other Than Election
Officials.--
``(1) Requirements for challenges.--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--
``(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
election.--No 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 Date.--This section shall apply with respect to
elections for Federal office occurring on and after January 1, 2024.''.
(b) Conforming Amendment Relating to Enforcement.--Section 401 of
such Act (52 U.S.C. 21111) is amended by striking ``and 303'' and
inserting ``303, and 303A''.
(c) Clerical Amendment.--The table of contents of such Act is
amended by inserting after the item relating to section 303 the
following:
``Sec. 303A. Voter protection requirements.''.
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