US election workers face thousands of threats – so why so few prosecutions?
Shortly before midnight on 14 February 2021, James Clark tapped out a message on his home computer in Yarmouth, Massachusetts, that would change his own life and shatter the peace of mind of several others.Clark, then 38, was surfing the internet having been drinking and taking drugs. Social media platforms were overflowing with heated debate around Donald Trump’s false claim that the 2020 presidential election had been stolen from him.Five days earlier, Trump’s second impeachment trial had opened over his alleged incitement of the insurrection at the US Capitol. Over in the battleground state of Arizona the online debate was especially raucous, with conspiracy theories raging that the vote count had been rigged.Though Clark lived 2,700 miles away from Phoenix, the Arizona capital, he felt driven to intervene. He found the contact page of the state’s top election official and typed: “Your attorney general needs to resign by Tuesday February 16th by 9am or the explosive device impacted in her personal space will be detonated.”Then he signed the message “Donny Dee”, and hit send.Clark’s bomb threat was discovered two days later, with instant seismic effect. Terrified staff fled from the state executive office building, sniffer dogs scoured several floors, and top state officials had to shelter in place.Four months after the panic at the Arizona executive building, the US Department of Justice circulated a memo to all federal prosecutors and FBI agents. There had been a “significant increase in the threat of violence against Americans who administer free and fair elections”, the memo said.The increase in threats amounted to “a threat to democracy. We will promptly and vigorously prosecute offenders.”The memo announced the formation of a new unit within the justice department, the election threats taskforce. Its job was to respond to a phenomenon that had barely existed before Trump unleashed his 2020 stolen election lie – violent and abusive messages, including death threats, specifically targeting election officials and their families.The taskforce was devised as a crack multi-disciplinary team bringing together experts from across the justice department and linking them with local FBI and US attorney offices. Its mission: to protect election officials from the intimidation let loose by Trump, by coming down hard on perpetrators.As the November presidential election fast approaches, the taskforce faces its greatest challenge. With Trump back on the ballot, and with swing states such as Arizona continuing to be roiled by election denial, the federal unit is at the frontlines of what promises to be a combustible election year.Much is riding on it. The Brennan Center, a non-partisan law and policy institute, has estimated that since 2020, three election officials have quit their jobs on average every two days – that’s equivalent to about one in five of those who run US elections nationwide bowing out in the face of toxic hostility.View image in fullscreen“What the election threats taskforce does this year is going to be critical,” said Lawrence Norden, senior director of the Brennan Center’s elections and government program. “They have the biggest megaphone, and they need to use it to make clear that threats of violence against election workers are illegal and will not be tolerated.”Day-to-day efforts of the taskforce are headed by John Keller, principal deputy chief of the public integrity section of the justice department’s criminal division. As the election year gets under way, his team is preparing itself for whatever lies ahead amid a collapse of confidence among some sections of American society in election results – and by extension, election workers – which Keller described as “incredibly concerning”.“Any criminal threat to an election official that seeks to intimidate them, or change their behavior or how they perform their critical functions, is a significant problem,” he told the Guardian. “The election community in the current climate feels attacked, they are scared, and the department recognizes that.”As part of those preparations, the election threats taskforce is stepping up its contact with election administrators from coast to coast. Since its inception, the team has held more than 100 trainings and engagements with election officials and regional prosecutors to share knowledge on how to deal with hostile attacks.Over the next eight months the taskforce will continue to hold a series of tabletop exercises in which federal experts and their regional partners role-play responses to possible worst-case scenarios, from serious death threats aimed at election administrators to bomb threats against polling places or other election infrastructure. Similar war games will act out what would happen in the event of a cybersecurity attack or attempt to bring down the power grid on election day.At the core of the taskforce’s operations are criminal prosecutions of the most serious threats against election staff and volunteers. In almost three years, the unit has prosecuted 16 cases involving 18 defendants, two of whom are women.Ten perpetrators have so far been sentenced, with punishments ranging from 30 days to 3.5 years in prison. A further three people have pleaded guilty, and five have been charged and are awaiting plea deals or trials.Clark was sentenced to 3.5 years’ imprisonment earlier this month for his Arizona bomb threat. At his sentencing hearing in federal district court in Phoenix, a prosecutor from the election threats taskforce requested a strong deterrent punishment, pointing out that within minutes of sending his threat Clark had searched online for information on “how to kill” the then secretary of state.Arizona is the ground zero of election threats, accounting for seven of the taskforce’s 16 prosecutions. On Monday Joshua Russell was sentenced to 30 months in prison in federal court in Phoenix for leaving a series of voicemails in 2022 for Katie Hobbs, the current Democratic governor of Arizona who was then acting as secretary of state.He said: “Your days are extremely numbered. America’s coming for you, and you will pay with your life, you communist traitor.”One of the striking features of the taskforce is the relatively few cases it has prosecuted compared with the mountain of hostile communications that has been dumped on the election community in the Trump era. In its early stages, the unit invited election offices around the country to forward all the offensive material to its Washington headquarters and was inundated with thousands of obscene, abusive and hostile messages.View image in fullscreenBut when it pored over the reports it found that up to 95% of them failed to meet the threshold for conducting even a criminal investigation, let alone prosecution. That standard was set by the US supreme court in the 2003 ruling Virginia v Black, which weighed the need to shield public servants from criminal threats of violence against the robust protections for political speech under the first amendment of the US constitution.The court’s conclusion was that for a communication to be a crime it has to be a “true threat”. The justices defined that as a “serious expression of an intent to commit an act of unlawful violence”.Most of the messages reviewed by the taskforce were distressing and inappropriate, certainly, but in its analysis fell short of that criminal bar. They were indirect rather than direct, implicit rather than explicit, ambiguous and aspirational rather than an active statement of intent to carry out illegal violence.“The difference between what is criminally actionable, and what feels like a threat to an election administrator on the ground, is an inherent problem in this space. What is potentially actionable is closer to dozens of cases, compared with the thousands of hostile communications we have received,” Keller said.Despite the legal complexities of a “true threat”, some at the receiving end of the vitriol are calling for more urgent action. Adrian Fontes, Arizona’s current secretary of state whose office has been the target of several of the most serious threats, told the Guardian that in his view it was taking “monstrously long” for federal prosecutors to secure sentences.He called for an increase in penalties, and a broadening of the scope of what constitutes a criminal threat against election officials. “I don’t know that the federal bureaucracy has been nimble enough. They’re not treating it like the domestic terrorism that it is,” he said.Bill Gates, a Republican supervisor with Arizona’s largest constituency, Maricopa county which covers Phoenix, is quitting his job as a top election administrator after the November election in part because of the terrifying threats he and his family have suffered. He also called on the taskforce to step up the intensity of its operations at this critical moment.“I’m grateful for what they’ve done, but we feel like they could do more,” he said. “We all feel that the January 6 prosecutions [over the attack on the US Capitol] have been very aggressive and well-publicized, and we’d like to see the same level when it comes to threats against election workers.”The taskforce said that the 12- to 24-month gestation period for its election threats prosecutions was similar to any other federal case, from violent crime to fraud. Keller agreed though that deterrence was vital.View image in fullscreen“The deterrent value of the cases is critical. Like most things in most spaces, I’m sure that we could do more and do better, and we are trying to come up with new ways to attract more attention to this work to maximize that deterrent impact,” he said.It’s not just legal constraints that affect the number and speed of prosecutions, there are other technical hurdles that the taskforce has to negotiate. Identifying perpetrators who disguise themselves by using foreign internet service providers or burner phones can be a challenge, and subpoenas seeking the information from companies such as Facebook and Twitter or Verizon and AT&T usually take six to eight weeks.Against such impediments, the taskforce is hoping to build up resilience against the anti-democratic onslaught by improving communications between the central justice department and the FBI’s 56 field offices and 94 US attorney’s offices around the country. Each FBI office has an election crime coordinator, working in tandem with the taskforce’s election community liaison officer.The network has been used to share information about how to deal with growing problems such as swatting – hoax calls to 911 reporting crimes or fires at public officials’ homes. Lists are being compiled of potential swatting targets in sensitive areas like Maricopa county so that officers are aware that the emergency calls may be false as soon as they come in.Norden of the Brennan Center said that as the election year hots up, relationships between beleaguered local election workers and the powerful federal hub will become ever more important. “The taskforce’s presence lets election officials know the federal government has their backs. That’s essential, because a lot of them, particularly in the immediate aftermath, felt kind of abandoned.” More
