The Election

Sabotage Scheme
and How Congress
Can Stop It
By Will Wilder, Derek Tisler, and Wendy Weiser
PUBLISHED NOVEMBER 8, 2021

O
ver the past few months, the drive to allow directly overturn legitimate election results. While these
partisan sabotage of the election process had a bills did not pass, their mere introduction is a shocking
series of frightening public successes. The affront to democratic norms.
Arizona State Senate concluded its partisan review of the Following a legislative season that saw many states
2020 election in Maricopa County, a nakedly political bid increase barriers to voting, these laws and proposals,
to feed disinformation and conspiracy theories. The Geor- often added quietly and late in the legislative process,
gia legislature passed a bill along party lines to remove would change who runs elections, who counts the votes,
the elected secretary of state — who stood up to requests and how. They go beyond vote suppression to enable
to overturn the 2020 election results — as chair of the direct election subversion. And they have a distinctly
State Elections Board and replace him with a hand-picked authoritarian flavor. Joseph Stalin put it pungently: “I
chairperson. In Texas, the governor signed a law that consider it completely unimportant who in the party will
targets local election officials and poll workers with new vote, or how; but what is extraordinarily important is this
penalties, empowers partisan poll watchers, and cuts — who will count the votes, and how.”
down on access to voting. The Texas secretary of state Legislation enabling partisan interference in election
also announced a dubious election review, the day after administration is part of a broader “election sabotage” or
former President Donald Trump urged it. And in states “election subversion” campaign, a national push to enable
like Missouri and Oklahoma, legislators introduced even partisans to distort democratic outcomes.1 It includes
more extreme bills that would have allowed them to partisan reviews of vote tallies to justify overturning elec-

1  The election subversion trend has been well documented in several other reports in recent months. The States United Democracy Center,
Protect Democracy, and Law Forward published a report describing elements of the trend and analyzing important bills to counter it. Another
recent report by the Voting Rights Lab built upon this research and linked these bills to other developments. And an analysis by the Center for
American Progress looked at particularly troubling subversive legislation in Arizona, Florida, Georgia, and Texas.

1 Brennan Center for Justice at New York University School of Law

tion results and enacting new laws to subvert fair elections communities are given fair access to the ballot. Partisan
in a growing number of states. It includes attacks and election boards, for example, could not claim that coun-
pressure on state and local election officials to subvert fair ties had improperly allowed people to vote by mail
election rules or election outcomes. It includes the unprec- if they were merely following unambiguous federal
edented push in the states to restrict access to voting. And requirements. The same is true for vote-counting
finally, it includes a movement by majority parties in standards. Congress must act quickly and decisively
multiple state legislatures to entrench themselves in to blunt the election sabotage scheme before it
power through extreme gerrymandering and other gathers more momentum at the state level.
discriminatory tactics — an effort that could distort our
democracy for the next decade, just as maps drawn with
partisan bias after the 2010 Census skewed elections in Direct Election Sabotage:
2012, 2014, 2016, 2018, and 2020.
While the partisan sabotage bills have not been enacted Partisan Authority to
into law at the same pace as vote suppression bills, they
are a new and dangerous twist on the same legislative Change Election Results
agenda. Each is driven by the Big Lie that there is wide-
spread voter fraud. And each is part of a broader ongoing State legislators brazenly introduced at least 10 bills
partisan project to thwart democratic elections and rig in seven states during the 2021 legislative session that
electoral outcomes, especially by undermining or cancel- would have directly empowered partisan officials to
ing the votes of people of color. Each is antidemocratic change or overturn election results. While none of these
and toxic to a free and fair society. And each demands bills have become law, they expose the antidemocratic
urgent intervention by Congress to prevent irreparable motivation behind the larger election sabotage movement
corruption of our electoral system. and provide a worrying marker of how far voting rights
This paper briefly catalogs recent election sabotage opponents want to go. Their widespread introduction is
legislation and the status of those efforts and explains an urgent warning sign for the health of our democracy.
how they threaten our democratic system. Specifically, These bills would authorize partisan actors to reject
there are four categories of legislation to sabotage the election results in a few different ways. In Arizona,
electoral process: (1) legislation to give state officials the Missouri, and Nevada, legislators introduced bills that
power to change or reject election results; (2) legislation would have allowed the state legislature to directly reject
to give partisan state officials the power to seize control election results.2 Michigan legislators introduced a bill
of the election administration and vote-counting that would open up the election certification process to
processes; (3) legislation to restrict, control, or punish the post hoc partisan meddling by allowing a member of any
conduct of local election officials; and (4) legislation to county board of canvassers to rescind a vote to certify an
make it harder to vote. election by affirming that they made their original vote
The paper then details the most significant legislative under duress.3 In Texas, legislators introduced a bill that
solution: the Freedom to Vote Act (FTVA), a transforma- would have allowed individual judges to throw out elec-
tive voting rights and democracy reform bill that would tion results if they perceived evidence of a certain number
thwart most election sabotage efforts. The Freedom to of supposedly illegally cast votes.4 Idaho legislators intro-
Vote Act includes provisions targeted at specific election duced a bill that would have counted only in-person votes
sabotage threats. But its core voting rights provisions and absentee votes cast with a valid excuse when deter-
would also defang election sabotage laws. By establishing mining presidential electors, even though Idaho is a
clear, enforceable national standards on issues such as no-excuse absentee state.5 And in Oklahoma, legislators
early voting, vote by mail, and the counting of ballots, the introduced a bill that would have eliminated the
Freedom to Vote Act would deprive partisans of the popular vote for presidential electors entirely until
discretion to suppress or discard legitimate votes. It would Congress passes national legislation requiring photo ID
also deprive partisans of the raw material that underlies and paper ballots.6
their phony claims of fraud whenever marginalized

2  AZ H.B. 2720; AZ H.B. 2800; AZ H.B. 2826; MO H.B. 1301; NV A.J.R. 13.
3  MI H.B. 4966. Notably, a county board of canvassers in Michigan was already the target of a postelection pressure
campaign by President Trump in November.
4  TX S.B. 7.
5  ID H. 0105.
6  OK S.B. 33.

2 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It
 Arizona Rep. Brenda Barton introduced one of the New Laws Authorizing Partisan Takeovers of
nation’s most dangerous election subversion bills, which Local Election Administration
would have allowed the legislature to directly reject the At least two states have passed laws that allow partisan
results of any election during a special legislative session.7 actors to remove professional election officials and seize
While this bill was not enacted, Barton introduced several complete control of election administration in a specific
other antivoter bills that were, including a new law that jurisdiction.
bars election officials from modifying deadlines during
emergencies and prevents them from accepting grants ƒ Arkansas: S.B. 644 allows a special legislative commit-
from private foundations to fill budget shortfalls, and a tee to investigate county election officials for alleged
resolution opposing federal democracy reform legislation.8 violations of election law and send recommendations
Outright license to reject election results represents the to the State Board of Election Commissioners on what
extreme end of the spectrum of antidemocratic legisla- action to take in response to violations. The board may
tion. None of these bills have passed,9 but they are part of then vote to decertify and remove the election official
the same partisan legislative project as vote suppression, or even take over election administration in the county
gerrymandering, and efforts to undermine fair election entirely, which could enable partisans to achieve a
administration. As such, they provide context for under- specific election outcome. Arkansas also enacted three
standing the motivations behind other bills that would laws that take certain election administration powers
more indirectly subvert elections and manipulate election away from elected county clerks10 and grant them to
results — bills that are, in fact, becoming laws. county boards of election commissioners, which are
controlled by the majority political party in the state.
This power grab would disempower voters in counties
Indirect Election where the majority party is out of power on the state level.11

Sabotage: Partisan Control ƒ Georgia: S.B. 202 removes the secretary of state from
the State Election Board and empowers the legislature
of Election Administration to handpick a chairperson to take his place. The bill also
allows the legislature-controlled State Election Board
and Vote Counting to suspend county election officials if they find “nonfea-
sance, malfeasance, or gross negligence.” By increasing
At least three states have passed, and at least 10 more partisan influence on the State Election Board and then
have considered, bills that would sabotage the democratic empowering it to remove local election officials, the
process in more indirect ways, by allowing political parti- state legislature has given itself the power to replace
sans to seize control of certain aspects of election admin- professional election officials with partisan operatives
istration typically handled by professional election who could manipulate the election administration
personnel. These include bills that would authorize parti- process or even sabotage vote counting.
sans to remove local election officials and step in to
administer an election; allow partisans to take control of
other aspects of election administration, such as voter Bills Allowing Partisan Influence in Specific
registration or polling place relocation; and authorize ille- Aspects of Election Administration
gitimate partisan reviews or investigations into allegations Legislators in Arizona enacted S.B. 1819, which transfers
of fraud. This legislation officially makes it easier for parti- the power to defend state election laws in court from the
sans to accomplish what many of them attempted unsuc- secretary of state to the state attorney general, but only
cessfully in 2020 —throwing out legitimate votes. until a new secretary of state is elected in 2022. This bill

7  AZ H.B. 2800.
8  AZ H.B. 2794; AZ H.B. 2569; AZ H.C.R. 2023.
9  The only such bill to advance through even one legislative chamber is S.B. 7 in Texas. Many provisions of this bill were ultimately incorpo-
rated into S.B. 1, which passed in a special session; however, the provision allowing judges to reject election results was not reintroduced.
10  AR S.B. 487 (use of vote centers); AR S.B. 498 (review of complaints regarding election law violations); AR SB 557 (supervision of election
workers).
11  A.C.A. § 7-4-102 (establishing the membership of county boards of election commissioners as two members elected by the county
committee of the majority party and one member elected by the county committee of the minority party); A.C.A. § 7-1-101(18) (defining the
majority party as the political party in the state whose candidates were elected to a majority of the statewide constitutional offices in the last
preceding general election). See also the Arkansas State Board of Election Commissioners.

3 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It
seems to be a direct effort to curb the ability of the current Partisan Election Reviews Designed to Cast Doubt on
secretary of state, Katie Hobbs, to settle voter access Legitimate Election Outcomes
lawsuits. At least five states — Arizona, Michigan, Pennsylvania,
Legislators in at least 10 other states have introduced, Texas, and Wisconsin — have conducted or are conduct-
but not passed, bills giving partisan officials new powers ing illegitimate partisan reviews of the 2020 election.
to seize control of aspects of the election administration These reviews are being conducted by partisan actors and
process.12 The following states are among those that have are specifically designed to cast doubt on legitimate elec-
introduced such bills. tion results. They are setting the stage for future efforts
to suppress votes and subvert election outcomes. As the
ƒ Louisiana: S.B. 220 would have empowered the legis- Brennan Center has reported, these partisan reviews serve
lative auditor — a partisan official appointed by the no legitimate election integrity purposes. They uniformly
legislature — to audit any state, local, or federal election fail to satisfy basic security, accuracy, and reliability
using any “scope, frequency, and methodology” the measures for postelection audits, and the individuals
auditor wants, and then to submit a report to certain tasked with conducting these reviews themselves fail to
legislative committees. Combining undefined scope meet basic qualifications and objectivity standards. More-
and methods with partisan influence could weaponize over, these partisan reviews come after each of these
these partisan audits against targeted jurisdictions. states already conducted legitimate postelection audits
The bill passed both chambers but was vetoed by under existing state procedures that confirmed the
Gov. Jon Bel Edwards. outcome of the election. In contrast to the validated
procedures that election officials use to ensure election
ƒ Michigan: S.B. 297 would require local election offi- integrity, these partisan reviews are designed to sow
cials to obtain approval from a member of each party doubt about our elections.
on the county board of canvassers before hiring an These actions are all indirect methods of subverting
assistant to help with the vote-counting process. This election outcomes and fair elections. Partisan control of
requirement would allow partisan actors on a county the vote-counting process offers political operatives
board of canvassers to unilaterally slow down vote opportunities to meddle with election results. Partisan
counting by refusing to approve the hiring of additional control of election administration offers political opera-
staff. It seems to be a direct response to conspiracy tives opportunities to restrict voter access in targeted and
theories about vote tabulation that emerged in Michi- discriminatory ways. And partisan control of election
gan in the days after the 2020 election. audits undermines faith in our election system and opens
the door to future partisan interference with the election
ƒ Missouri: H.B. 738 would have allowed the secretary process. The resulting damage could facilitate more
of state to audit the voter rolls of any county and with- extreme antidemocratic measures.
hold funding if local officials refuse to remove a voter
the secretary determines is ineligible. This could be
used to pressure counties to engage in irresponsible
purges of the voter rolls in a manner that would disen-
franchise eligible voters.

ƒ Wisconsin: A.B. 304 would have granted the state’s

Elections Commission the power to issue temporary
restraining orders against local election officials and
review election officials’ decisions regarding recounts.
Currently, only courts have these powers in Wisconsin.
The Elections Commission, while officially bipartisan,
was created to shield former Gov. Scott Walker from a
campaign finance investigation and has a history of
partisanship. Two of its members objected to certifying
the 2020 general election results.

12  AK H.B. 196; CT H.B. 5540; HI H.B. 853; LA S.B. 220; MI S.B. 297; MO H.B. 738; NC S.B. 105; PA H.B. 1482; SC S.B. 129; WI A.B. 304.

4 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It
Controlling Officials disqualified any election official from serving for 10
years in the event of disruption of a live video feed of
as Election Sabotage: the ballot-counting process.

Partisan Power to ƒ Iowa: S.F. 413, one of the first restrictive voting bills
enacted into law in 2021, allows prosecutors to crimi-
Control or Punish nally charge election officials for a variety of reasons,
including not being sufficiently aggressive in purging
Election Officials voter registration rolls or obstructing poll watchers.
Aggressive purges of voter rolls disenfranchise legiti-
Legislators in at least 17 states have introduced a long mate voters, and lax oversight of poll watchers results
list of bills that permit partisan punishment of election in intimidation of election workers and voters.
officials and increase the power of partisan poll watchers.
By allowing state officials to target specific jurisdictions ƒ Texas: H.B. 574 makes it a felony to knowingly count
or specific voting practices, these bills increase the risk of invalid votes or refuse to count valid votes. And S.B. 1
partisan sabotage of election outcomes. And by imposing makes it a felony to affirmatively distribute mail ballot
chilling criminal and civil penalties and pointless restric- applications to voters who did not request them, or to
tions, these bills are accelerating the mass exodus of expe- solicit or truthfully inform voters of their right to request
rienced, professional election officials from their jobs, such applications. It also creates civil penalties specif-
opening the door to further partisan influence in election ically targeted at election officials for minor mistakes.
administration. The Brennan Center is currently suing Texas over S.B. 1.

Bills to Coerce Election Officials with Criminal and

Civil Penalties Bills Empowering Partisan Poll Watchers at the
At least six states have enacted bills that will create new Expense of Election Workers
crimes, increase existing criminal penalties, or create new At least three states have enacted bills granting new
civil penalties for legitimate election official actions or powers to partisan actors serving as poll watchers,
minor mistakes, and at least 10 additional states have poll observers, or challengers.
introduced similar bills.13 In a politically charged environ-
ment, partisan actors could easily use these new penalties ƒ Texas: S.B. 1 empowers partisan-appointed poll watch-
to coerce or intimidate election officials, thwart voter ers at voting locations in several ways. The law makes
participation, or otherwise undermine free and fair elec- it a crime for election judges to reject qualified poll
tions. The following states are among those that have watchers, establishes that poll watchers must have free
enacted such bills. movement throughout an entire voting location, and
bars election judges from removing poll watchers for
ƒ Alabama: H.B. 285 bans curbside voting, an important certain violations of election law unless they personally
option for voters with disabilities, and makes it a crime observe the misconduct. These provisions will substan-
for any election officer or poll worker to take a ballot tially impede the ability of election officials to maintain
into or out of a polling place in most situations. This orderly polling places and to address intimidation or
puts poll workers or election officials who attempt to other misconduct.
expand voting access for people with disabilities at risk
of prosecution. ƒ Florida: S.B. 90 requires election officials to allow
partisan-appointed observers to examine the markings
ƒ Arizona: H.B. 2794 makes it a felony for an election on every ballot that is duplicated during the tabulation
official to change any election deadline, and H.B. 2905 process because the original was damaged, and it also
makes it a felony for an election official to send a mail allows observers to make an unlimited number of chal-
ballot to a person who has not requested one. These lenges to each ballot’s validity. This empowers partisan
laws eliminate election officials’ flexibility to modify observers to stand intimidatingly close to election work-
processes to protect voters under exigent circum- ers and to slow down or gum up the ballot-counting
stances. H.B. 2720, which did not pass, would have process.

13  The bills that have been enacted are AL H.B. 285; AL H.B. 589; AZ H.B. 2794; IA S.F. 413; KS H.B. 2332; ND H.B. 1253; and TX H.B. 574. The
bills that have been introduced are AK H.B. 196; AK S.B. 39; AR S.B. 604; AZ H.B. 2811; GA H.B. 132; MI H.B. 4963; NC H.B. 715; PA H.B. 1703; RI
H.B. 6099; SC H.B. 4255; SD S.B. 116; TX S.B. 97; and WI A.B. 310.

5 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It
ƒ Georgia: S.B. 202 enables mass challenges to voter document with a mail ballot application, shortens the
eligibility and threatens county election boards with window for applying for a mail ballot, and restricts the
sanctions for failing to respond to voter roll challenges. use of mail ballot drop boxes. These restrictions will place
Partisan interest groups made several attempts to chal- more barriers to mail voting after an election in which for
lenge the eligibility of thousands of Georgia voters the first time a greater share of Black Georgians voted by
before the 2021 U.S. Senate runoff elections, including mail than white Georgians. In Iowa, in addition to target-
one attempt that targeted more than 364,000 voters. ing election officials with unreasonable criminal penal-
Georgia’s new voting law will make it more difficult for ties, S.F. 413 contains several restrictive voting provisions.
election officials to rein in partisan challenges like these The law expands voter roll purges, which could lead to
in the future. eligible voters being removed from the voter rolls. It also
shortens the mail ballot application window, shortens the
Many of these bills are a direct response to actions taken early voting period by nine days, and requires polling
by election officials in 2020 to promote voter access and places to close an hour earlier than they have in the past
keep voting safe and secure. They build upon a new and on Election Day. These changes increase the burdens of
deeply concerning trend of attacks on election officials, voting for many people. In Florida, in addition to curtail-
including threats of physical violence, as the Brennan ing election officials’ authority, S.B. 90 restricts access to
Center and the Bipartisan Policy Center documented in mail voting by requiring voters to provide an ID number
a report earlier this year. Of course, it is important that on their mail ballot (with no exception for voters who do
election officials follow state law, but statutes do not and not have an ID) and making it more difficult to access mail
cannot address every possible issue that will come up ballot drop boxes. And in Texas, in addition to establish-
when running an election. Election officials must be able ing new criminal and civil sanctions against election
to implement laws in a way that considers the needs of officials working to protect voter access and new powers
their voters and ensures the integrity of the election for partisan poll watchers, S.B. 1 restricts community
process. The threat of criminal penalties will chill election groups’ ability to assist voters with disabilities or
officials from exercising this discretion — or worse, it limited English proficiency.
could foster inappropriate actions to undermine voter Restrictive voting legislation distorts and subverts the
participation. Moreover, in the context of persistent electoral process by keeping out eligible voters. What is
harassment, physical threats, disinformation, partisan more, many of these new laws target, and disproportion-
interference, and overall exhaustion from the challenges ately burden, voters of color. At a time of razor-thin elec-
of 2020, state efforts to impose criminal penalties and tion margins, there is no question that voter
restrict election official activity will push experienced and disenfranchisement and racist vote suppression is prop-
knowledgeable public servants out of election adminis- erly viewed as a form of election sabotage.
tration altogether. Compounding the harms associated with vote suppres-
sion, the country is entering another redistricting cycle in
which partisans are already leveraging control of the
Vote Suppression as congressional redistricting process to lock in their power
regardless of changing voter preferences. Many of these
Election Sabotage: efforts are expected to target Black, Latino, and Asian
communities in states undergoing major demographic
New Laws and Bills shifts, such as Florida, Georgia, and North Carolina. Texas
has already released a new, distorted congressional map
Making It Harder to Vote that would create additional majority-white seats even
though people of color accounted for 95 percent of the
State legislators have also introduced bills that restrict state’s population growth over the past decade.
access to voting more generally. As the Brennan Center
has thoroughly documented, 2021 has been a
record-breaking year for vote suppression bills. At least
19 states have passed 33 different laws that restrict
access to voting as of October 4, 2021. Overall, legislators
in 49 states introduced more than 400 such bills.
For example, in addition to the previously discussed
provisions about partisan removal of election officials and
mass challenges, Georgia S.B. 202 includes a number of
restrictions on voter access. The law requires voters to
provide either an ID number or a photocopy of an ID

6 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It
The Freedom to Vote Act: A second bill, the John R. Lewis Voting Rights Advance-
ment Act (VRAA), is also needed to bolster protections
Critical Protections against racially discriminatory vote suppression and redis-
tricting abuses. The VRAA would restore and update the
Against Election Sabotage protections against racial discrimination in the landmark
Voting Rights Act of 1965. Given the racially targeted
The multifaceted threat of election sabotage requires nature of so many efforts to subvert election results, the
a multifaceted response. The Freedom to Vote Act is a VRAA adds a critical layer of protection beyond the
major and necessary part of that response. It creates clear national standards in the Freedom to Vote Act.
national standards to protect the right to vote and end
extreme gerrymandering. It blunts or stops partisan The FTVA Responds to Efforts to Seize
efforts to seize control of election administration. If parti- Control of Election Administration
sans do gain control of the electoral process, the FTVA The Freedom to Vote Act responds to each of the new elec-
limits their ability to manipulate outcomes by making tion sabotage tactics that seek to put partisans in control
clear rules that ensure all valid votes will be counted. It of election administration with specific safeguards.
also limits the impact of after-the-fact partisan election
reviews and gives voters a clear legal remedy if officials ƒ Attempts to retaliate against or replace specific elec-
unreasonably refuse to certify or otherwise set aside the tion officials: Sec. 3001 of the FTVA creates legal
results of an election. protections for election officials facing politically moti-
Congress has strong authority under the Constitution vated removal proceedings, such as those permitted
to enact these changes. Indeed, only Congress can effec- under Georgia S.B. 202. It establishes that local election
tively respond to the threat of election sabotage. Political officials can only be removed by state election admin-
mobilization and organizing cannot overcome election istrators for specific reasons, such as gross negligence
sabotage efforts. Nor can the courts be relied upon to or malfeasance in office, and gives them the right to
protect American democracy without strong new laws; challenge their removal in federal court.
the Supreme Court has in recent years retreated from
protecting voting rights and has seriously weakened ƒ Attempts to criminalize or prosecute election
prior voting rights laws. Clear new directives from officials: Sec. 1301 of the FTVA specifically bars states
Congress are needed to fully protect the electoral process from prohibiting anyone from providing a mail ballot
and every American’s freedom to vote. application to an eligible voter. This requirement would,
for example, preempt the provision in Texas’s new law
The FTVA Response to Vote Suppression and that makes it a crime for an election official to distrib-
Gerrymandering Is Wide Ranging ute mail ballot applications to voters who have not
The Freedom to Vote Act directly responds to vote specifically requested them. The Freedom to Vote Act’s
suppression and gerrymandering with clear and enforce- national voter access standards also create a broader
able national standards guaranteeing every American shield, since a state cannot prosecute an election offi-
reasonable access to the ballot. For example, the act cial for taking an action required or authorized under
would preempt the numerous attempts to restrict mail federal law.
voting in states such as Iowa, Florida, Georgia, and Texas
by requiring states to offer no-excuse mail voting to all ƒ Attempts to intimidate election officials: Sec. 3601
eligible voters, without restrictive ID requirements or of the FTVA regulates poll watcher behavior and limits
other hurdles like requiring witnesses or notarization. The poll watchers’ ability to challenge voter eligibility. Sec.
act would also require states to make drop boxes widely 3206 strengthens legal protections against threatening
available for mail ballot return. The Freedom to Vote Act or intimidating conduct directed at election workers
would curb discriminatory purge practices that disenfran- during the vote tabulation, canvass, and certification
chise eligible voters, and it would foil specious mass chal- process.
lenges to voter eligibility based on dubious information
like those sanctioned by Georgia’s S.B. 202. These and These protections will make it much harder for parti-
other new protections for voter access would block parti- sans to seize control of election administration processes.
sans from using restrictions on voting to manipulate elec- But even where they do, the Freedom to Vote Act insti-
tion outcomes. The Freedom to Vote Act also contains an tutes robust protections regardless of who is counting the
outright ban on partisan gerrymandering and requires votes, as discussed below.
states to use clear, neutral standards and transparent
processes when drawing congressional district lines.

7 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It
The FTVA’s Rules Address Partisan Attacks ent political parties concur that a signature is invalid
on the Vote-Counting Process before rejecting a ballot. It also requires election offi-
The Freedom to Vote Act institutes clear rules to ensure cials to promptly notify voters when their ballot is
that legitimate votes are counted and preempts any effort rejected and give them an opportunity to fix the defect.
by partisans to invalidate legitimate votes. The threat of
partisan actors inconsistently applying vote-counting ƒ Ballots cast in drop boxes: In several lawsuits follow-
rules for partisan advantage loomed large over the 2020 ing the 2020 election, including one in Wisconsin,
election. Many of the bills advanced at the state level this partisans sought to invalidate all votes cast through
year would further that effort by enabling partisans to mail ballot drop boxes on the theory that those drop
discard mail ballots or other ballots cast by legitimate boxes were not authorized. Sec. 1305 of the FTVA would
voters in certain circumstances. The act responds to these preempt those efforts by creating a federal requirement
scenarios in several ways. that states establish secure mail ballot drop boxes.

ƒ Naked ballots: In Pennsylvania, some legitimately cast ƒ Ballots cast by mail in general: After the 2020 elec-
mail ballots were thrown out during the 2020 election tion, allies of President Trump sued several states across
because voters did not place their mail ballots in an the country to invalidate votes cast by mail based on
extra secrecy envelope (these ballots were known as unfounded allegations of fraud. One of their more egre-
“naked”). The problem would have been much worse gious lawsuits was against Pennsylvania, where Trump
absent a multimillion-dollar public education campaign; allies attempted to invalidate more than 2.5 million
Philadelphia’s chief election official estimated that votes. Sec. 1301 of the FTVA mandates that all states
roughly 6 percent of mail ballots cast in prior elections offer no-excuse mail voting, a measure that would
were “naked.” Sec. 1301 of the FTVA requires election prevent partisan actors from throwing out legitimate
officials to provide voters with timely notice of any ballots based on how they were cast.
defect in their mail ballot and an opportunity to fix the
defect and ensure their ballot is counted, thereby The FTVA’s Risk-Limiting Audits Further Respond to
preventing uneven or partisan application of vote Vote-Counting Threats
disqualification rules like the one in Pennsylvania. The fight over election sabotage focuses on mail and
provisional ballots because ballots cast in person via a
ƒ Late-arriving ballots: Mail delays were a well-publicized voting machine are much harder to throw out. But the
problem during the 2020 election. In states including Freedom to Vote Act does incorporate additional protec-
Minnesota, North Carolina, and Pennsylvania, partisan tions for all votes, including a requirement in Sec. 4001
actors attempted through litigation to invalidate legit- that states conduct true risk-limiting audits starting in
imate mail votes that were cast on time but arrived after 2024. This type of audit is the gold standard for election
Election Day because of mail delays. A case filed in security and can detect errors, manipulation of vote totals,
Pennsylvania seeking to invalidate late-arriving ballots and malfeasance using sound statistical methods.
made it all the way to the Supreme Court. Sec. 1301 of
the FTVA responds to this threat with a uniform rule: The FTVA Responds to Partisan Election Reviews and
all legitimate mail ballots that are sent by Election Day Illegitimate Audits
must be counted if received within seven days of the To blunt the ability of partisans to use fraudulent election
election. reviews and audits to cast doubt on results, Sec. 4001 of
the FTVA mandates that states audit election results start-
ƒ Signature matching: Many states require election ing in 2024 using proper risk-limiting audit techniques as
officials to verify mail ballots by matching the signa- described above. It also provides grants to support devel-
tures on the ballot envelopes with those on the voter opment of these practices. These new safeguards will
rolls. During the 2020 election, partisan actors sought promote confidence in election outcomes and minimize
to use this requirement to toss out legitimate ballots the risk of audits and recounts being used for partisan
based on technical mistakes and to prevent state actors sabotage.
from allowing voters to correct those mistakes. Since In addition to new rules about audits, Sec. 3301 of the
the election, at least four states, including Arizona and FTVA responds to the threat of partisan postelection
Texas, have passed laws imposing stricter mail ballot reviews by creating stronger protections for federal elec-
signature requirements, which could give partisan tion records and voting equipment. The act expands
actors more discretion to reject ballots. The Freedom penalties for interfering with federal election records to
to Vote Act institutes specific rules governing signature cover electronic records and creates a federal cause of
verification and mail ballot processing. Sec. 1301 action for political candidates and the attorney general to
requires that at least two election officials from differ- enforce federal records protection laws. This provision

8 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It
would prevent partisan actors from turning over ballots, Conclusion
records, and equipment to unqualified private vendors,
as Arizona State Senate Republicans did in their widely The national partisan push to seize control of the election
discredited review of Maricopa County’s election results. administration process and control outcomes is an attack
on our democracy. Bills to authorize partisan takeovers
The FTVA’s Legal Cause of Action Further Counters of election administration, instigate questionable reviews
Efforts to Set Aside Results of election results, and restrict access to voting all arise
The final threat posed by the election sabotage movement from the same strategy. And the worst could be yet to
is the potential for a state to unreasonably set aside or come in the form of bills allowing partisans to directly
refuse to certify a legitimate election victory. While reject election results. Fortunately, Congress has the
setting aside a valid election result would almost certainly power to thwart this attack on our electoral system. By
violate constitutional guarantees for the right to vote, the enacting the Freedom to Vote Act and other critical bills,
Freedom to Vote Act also provides a clear statutory Congress can protect our democracy from attempts to
remedy through the new cause of action created by Sec. sabotage election outcomes.
3402, which allows voters to sue for infringement not
only of their right to cast a ballot but also to have that
ballot counted and the result certified.

Other Legislation Can Also Counter the Threat

of Sabotage
Additional legislation could help protect against efforts
to sabotage presidential elections by Congress or the
president. Most notably, the federal Protecting Our
Democracy Act would, among other things, reinvigorate
guardrails that prevent an unscrupulous president from
weaponizing federal law enforcement to undermine valid
election results, as then-President Donald Trump report-
edly attempted in the aftermath of the 2020 election.
Legislation should also be introduced to address weak-
nesses in the Electoral Count Act, the law governing how
Congress tallies electoral votes, which also create oppor-
tunities for mischief. These reforms are critical to rein-
forcing the last lines of defense. But the Freedom to Vote
Act’s clear national standards for voting rights, curbs on
partisan election reviews and other attacks on the
vote-counting process, strong protections for election
officials and workers, and other defenses will make it far
less likely that these final safeguards would ever need to
be called upon again.

9 Brennan Center for Justice The Election Sabotage Scheme and How Congress Can Stop It