Legislative Analysis For Counties: Enhanced Election Security & Protection Act

The Enhanced Election Security & Protection Act would double the maximum federal penalty for certain crimes against federally protected activities related to voting and the conduct of elections from one to two years in prison. Under this provision, an individual charged with crimes against federally protected activities is defined as those who by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with individuals from qualifying or acting as a poll watcher, or any legally authorized election official in any primary, special or general election.

This section would also give the same penalty – two years in prison – to individuals who harm or threaten individuals voting or qualifying to vote and qualifying or campaigning as a candidate for elective office.

If enacted, S. 4574 would reform the U.S. Postal Service’s (USPS) handling of election mail to improve the security and administration of vote-by-mail. The bill classifies federal election mail as any item mailed to or from an election official that enables individuals to vote in a federal election. The bill specifically enumerates ballots, voter registration cards, absentee voting applications and polling place notifications as federal election mail.

State and local governments are not required to comply with the election mail related provisions. However, the bill would do the following:

• Create best practices for election mail: The bill would require USPS to issue best practices guidance related to federal election mail for state, local, tribal and territorial governments by September 30 of each odd-numbered year. It would also require the report to, at minimum, include information on:
  • Optimal timing for voters to request and return absentee or mail-in ballots for federal elections
  • The design, physical standards and format of envelopes containing physical voting materials for federal elections that are processed through the mail (i.e. ballot envelopes)
  • The use of identifying information (labels, logos, etc.) to designate federal election mail for more efficient USPS processing
  • Other topics the USPS might identify that could improve the efficiency of election mail
• Coordinate election mail services: This legislation would designate employees to coordinate with mail processing plans, post offices, retail and delivery units and postal employees to ensure federal election mail is handled appropriately and that internal compliance reporting requirements and metrics are developed. The bill would also require USPS to designate at least one Election Mail Advisor in each state to provide information, guidance and coordination to assist state and local election officials manage the use of absentee and mail-in ballots. The USPS would determine how many Election Mail Advisors there would be per state based on the state’s population and election administration structure. Advisors would be tasked with:
  • Providing election officials with information on USPS regulations, processes and regional service standards related to processing federal election mail
  • Relaying best practices for the handling of election mail
  • Other duties to improve election official’s capacity to administer elections using absentee and mail-in ballots
• Create standardized federal ballot mail design: S. 4574 would require USPS to create standardized mail ballot envelope design parameters and features for blank outbound ballots and returning inbound ballots that a state may choose to use in federal elections. USPS would be tasked with providing advice for election officials on how to improve the tracking and visibility of mail-in ballots for federal elections by mailpiece design analysts, USPS employees specially trained to provide mailpiece design technical assistance. Election Mail Advisors would be tasked with ensuring ballot mail envelope designs are consistent with the standardized parameters and features if they are adopted by the state.
• Require daily ballot search & certification: The bill would make several reforms to USPS’ handling of election mail which includes requiring the USPS to conduct daily inspections for ballots in each USPS facility that processes federal election mail no later than 14 days before the date of the federal election and ending no earlier than seven days after the last day the respective state accepts ballots in any federal election. Managers or supervisors at each USPS facility would be required to certify on record each day during this period that all election mail ballots scheduled to depart have left the facility that day.
• Reform federal election mail processing: If enacted, the bill would prohibit the USPS from implementing any service standard changes that would slow or impact the efficient delivery of federal election mail or taking steps to meaningfully interfere with USPS service standards or its ability to prioritize the processing and timely delivery of election mail during the 90-days preceding a federal general election. Additionally, the bill would require USPS to:
  • Collect and process mail in a USPS district the Sunday before a general election is being held in that district
  • Coordinate with election officials to operate on extended hours to process election mail prior to a federal election
  • Implement procedures to apply a physical postmark (or other physical indication) with a clear, legible date to each identifiable ballot envelope indicating when the envelop was returned by mail to the extent possible

The Enhanced Election Security & Protection Act would reauthorize the U.S. Election Assistance Commission (EAC) for five years, or through Fiscal Year (FY) 2027 and amends the 2002 Help America Vote Act (HAVA; P.L.107-252) – which established the EAC – to remove the $10 million discretionary appropriations cap on the EAC’s operating budget. Ultimately, this would authorize Congress to appropriate the funds necessary for the EAC to administer grants and provide best practices and other resources to state and local election officials.

HAVA also authorized the EAC to assist state and local governments administer elections through the testing and certification of voting machines and systems. The criteria and specific requirements that voting systems must meet to be EAC certified are outlined in the agency’s voluntary voting system guidelines (VVSG). The EAC will certify a voting system when it has been tested by a federally accredited laboratory and has met the requirements of the VVSG and any other claims made by the manufacturer. S. 4574 would require the EAC to include penetration testing as part of its testing and certification (including decertification and recertification) of voting system hardware and software.

If enacted, the bill would require the U.S. Attorney General, in consultation with the Director of the Cybersecurity and Infrastructure Security Agency (CISA), to issue informal guidance related to compliance with federal election record retention and preservation requirements as well as recommendations for compliance. Currently, federal law requires election officials to retain and preserve all records and papers related to any requisite to voting for 22 months following any general, special or primary election for federal office. This includes, but is not limited to, any registration form, ballot (used or unused), mail-in ballot envelope, voter verified paper audit trail (VVPAT), voting machine report, or election day precinct log used in a federal election. The EAC currently does not have official guidance or recommendations related to election record retention and preservation.

S. 4574 would also increase the penalty for willful failure to retain and preserve election records from a $1,000 fine and no more than one-year sentence to prison to a $10,000 fine or no more than two-year sentence to prison. Additionally, the bill would make the theft, destruction, concealment, mutilation or alteration of voting systems in an attempt to knowingly and willfully deprive or defraud, or attempt to deprive or defraud, voters of a free and fair election process punishable by a determined fine or up to five-years in federal prison.