What Can The Biden Administration Actually Do To Protect Elections?

In a speech last week against a stark backdrop of red light at Philadelphia’s Independence Hall, President Biden warned of anti-democratic forces seeking to undermine American Democracy, saying that supporters of President Donald Trump saw the failed attempt to overturn the 2020 election as “preparation” for years to come. 

The President then offered a declaration: “I will not stand by and watch the most fundamental freedom in this country, the freedom to vote and have your vote counted, be taken from you and the American people.”

But what does that actually look like in practice? America’s elections are run by states and localities — leaving little room for the President — and congressional Democrats’ efforts to legislate voting rights protections have run up against a brick wall of Republican opposition. 

While the Biden administration has launched several initiatives combating attacks on poll workers and election integrity, some observers worry it’s not doing enough to push back against Donald Trump’s most fervent supporters, who continue to attempt to interfere with the democratic process.

‘Braced For The Worst’

Last summer, the Justice Department announced its new Election Threats Task Force, a working group to “receive and assess” threats against election officials in cooperation with U.S. Attorneys and FBI field offices across the country.

But as of last month, the task force had charged just five federal cases — in addition to another case that the group joined but was charged in 2020 before its formation — and had obtained just one guilty plea overall. 

“I keep hearing about more election officials that are receiving threats, but I don’t hear about any more prosecutions,” Matthew Weil, director of the Bipartisan Policy Center’s Elections Project, told TPM. Amy Cohen, executive director of the National Association of State Election Directors, testified to Congress last month, “a common refrain I hear from my members is that nobody is going to take this seriously until something bad happens, and we are all braced for the worst.” 

In a statement, Assistant Attorney General Kenneth A. Polite, Jr. noted many of the threats are made anonymously with devices that are difficult to trace.

“Nonetheless,” Polite said, “due to the sustained efforts of our prosecutors and law enforcement agents, we are progressing in these investigations and we anticipate additional prosecutions.”

There’s certainly plenty to work with: Despite the United States’ broad free speech protections, election officials have reported a spike in serious, potentially criminal threats since Trump’s attacks on the 2020 election. Late last year, journalists from Reuters collected 110 examples of real-world threats that law professors and attorneys said were potentially criminal. 

David Becker, founder and executive director of the Center for Election Innovation and Research, explained to TPM that election threats aren’t protected by the First Amendment if they’re actionable. 

“A threat that says something like ‘I think you’re an awful person and I hope you die,’ it’s probably not actionable,” he said. However, “a threat that says ‘I know where your children go to school and this is what the Second Amendment is for’ is probably not protected.”

But prosecutions alone don’t have to define success: Orion Danjuma, counsel at Protect Democracy, said that election officials — and would-be criminals — need to see a public response from the Justice Department in order to interrupt the intended effect of the threats, namely, to derail the democratic process and intimidate election officials, many of whom now say they intend to leave the profession soon. 

“The federal response to this, in some way, is not just about action that is taken, it’s also about perception of that action within the public and the election official community,” Danjuma said. “Election administrators and the public need to know that the federal government is addressing this, that they’re considering it a top priority, in order to know that their election systems are going to be secure.”

As it stands, according to polling commissioned by the Brennan Center for Justice earlier this year, most election officials feel the federal government should do more to support them; many also don’t know the task force exists.

“Communication with election officials is definitely something that could improve,” said Wendy Weiser, vice president of the Democracy program at the Brennan Center for Justice. Still, from what Weiser has seen, she said, Biden administration officials “recognize the significance of the problem and are prioritizing it.”

Assistant AG Polite maintained that the task force had prioritized community engagement, saying that the group directly engages with election workers, shares additional resources to help enhance their physical security, and communicates with various election-related organizations at both the state and local level.

‘Failure To Act’

Election officials facing threats can go to state and local law enforcement, as well, but without clear guidance, prosecutors may be hesitant to pursue cases where the line between free speech and criminal threats is hazy. 

“There are real limitations that they have in front of them, but they could still be doing more, certainly, to publicize what they think is crossing the line between the First Amendment and threats,” Weil said of the Justice Department. 

The DOJ has issued guidance on what constitutes a real election “audit,” and warned election deniers who’d planned to go door-to-door for a “canvass” of voters that they risked engaging in illegal voter intimidation. But similar guidance hasn’t been forthcoming about the legal limits of harassing election officials. 

Others have sought clarity in court: Late last month, the watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, filed a lawsuit hoping to have their request for public records expedited. The group said “the lack of transparency from the task force and its failure to act on the over 1,000 reported threats” had left some election officials questioning its effectiveness.

“It doesn’t appear that they’ve done much,” Anne Weismann, CREW’s chief counsel, told TPM. “Is that because there really is no merit to a lot of the complaints, or are they just not being aggressive enough?”

“We’re trying to figure out if this was all for show,” she said.

What Else Can Be Done

Though America’s scattered, locally-run election administration system doesn’t leave a huge role for the Executive Branch, there are steps the administration can take outside of law enforcement, and some it has taken, to fight back against Trumpian attacks. 

Various agencies, following an executive order from the president last year, have begun offering new opportunities for Americans to register to vote — a move that’s recently come under attack from the right. The Cybersecurity and Infrastructure Security Agency (CISA) has issued guidance for how election officials and poll workers can beef up their security. Similarly, the U.S. Election Assistance Commission, an independent body governed by a bipartisan board, clarified in June that federal election grants could be spent on security services.

In general, the federal government could take additional steps to beef up the grantmaking process, especially given the dramatic fluctuations in funding that states and localities set aside for elections, Danjuma said.

“Election administration is one of the least-funded sectors in American government,” he said, comparing the issue to school funding, which fluctuates wildly from town to town. “Poor communities, regardless of their population size, are going to generally have less resources to fund their elections.” 

Add in new security costs, he said, and “you really start to have a system that’s on the verge of collapse in certain areas.” 

For now, though, the clock is ticking: The 2022 midterms are two months away. Election offices are making final preparations. And in that light, Biden’s speech sounds less like a policy proposal than a rallying cry for federal employees, state and local governments — and voters.

“The crisis we’re facing as Americans is a fundamental, existential crisis about whether we want to be the democracy we’re familiar with,” Danjuma said. 

“That requires extremely concerted effort by the Biden administration, by the federal executive, but it really doesn’t end there.”