Securing our Elections Act of 2025

— 564 — Mandate for Leadership: The Conservative Promise Pennsylvania Act 12 (amended in 2020) does not authorize curing by providing provisional ballots for mail-in voters whose ballots were rejected. Act 12 requires, as part of the mail-in application process, an affidavit that: [The elector] shall not be eligible to vote at a polling place on election day unless the elector brings the elector’s mail-in ballot to the elector’s polling place, remits the ballot and the envelope containing the declaration of the elector to the judge of elections to be spoiled and signs a statement subject to the penalties under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) to the same effect.84 The law in Pennsylvania clearly states that no county may affirmatively provide provisional ballots: The mail-in voter must vote in person and sign a new affidavit. In the 2020 election, the Pennsylvania Supreme Court recognized that “the Election Code contains no requirement that voters whose ballots are deemed inadequately verified be apprised of this fact. Thus, unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects in a timely man- ner.”85 Given the Pennsylvania Secretary of State’s use of guidance to circumvent state law, the Pennsylvania Secretary of State should have been (and still should be) investigated and prosecuted for potential violations of 18 U.S. Code § 241. Investigations and prosecutions under 18 U.S. Code § 241 are currently within the jurisdictional oversight of the Civil Rights Division, not the Criminal Division.86 Only by moving authority for 18 U.S. Code § 241 investigations and prosecutions back to the Criminal Division will the rule of law be appropriately enforced. Rejecting Third-Party Requests for Politically Motivated Investigations or Prosecutions. The DOJ should reject demands from third-party groups that ask it to threaten politically motivated investigation or prosecution of those engag- ing in lawful and, in many cases, constitutionally protected activity. By acceding to such demands, the department risks diminishing its credibility with the American public. This risk is exacerbated by the fact that communications between govern- ment officials and third-party groups are generally unprotected by privilege and subject to disclosure, whether via subpoena to the third-party group or via request made pursuant to the Freedom of Information Act. These communications can even be made public voluntarily by the third-party group. A recent example illustrates the risks posed by such activity. On October 4, 2021, Attorney General Merrick Garland issued a memorandum to the Director of the FBI, the Executive Office for U.S. Attorneys, and the Assistant Attorney General, Criminal Division, calling on the FBI to work with each U.S. Attorney to “con- vene meetings with federal, state, local, Tribal, and territorial leaders” to discuss strategies for addressing “threats against school administrators, board members, teachers, and staff.”87 Subsequent reporting and investigation revealed that the — 565 — Department of Justice memorandum was prompted by a September 29, 2021, letter sent by the National School Boards Association (NSBA) to President Biden demanding a federal law enforcement response to perceived threats to school board members and pub- lic-school employees. The NSBA letter made outlandish demands in response to protests that were then occurring at school board meetings in response to COVID policies and revela- tions about the use of critical race theory–infused curricula in classrooms. Among the letter’s demands was a call for a federal investigation into parents’ actions (“hei- nous actions” that “could be the equivalent to a form of domestic terrorism and hate crimes”) under a variety of federal laws including the “Gun-Free Zones Act, the PATRIOT Act in regards to domestic terrorism, the Matthew Shepard and James Byrd Jr. Hate Crimes and Prevention Act, the Violent Interference with Federally Protected Rights statute, and the Conspiracy Against Rights statute” and “an Executive Order to enforce all applicable federal laws for the protection of students and public school district personnel, and any related measure.”88 Both the Attorney General’s memorandum and the NSBA letter drew swift public condemnation, including from 14 sitting state Attorneys General.89 A sub- sequent internal investigation commissioned by the NSBA revealed that officials at the White House had been in discussions with NSBA officials about the contents of the letter weeks before it was issued. The investigation also revealed that White House officials indicated they planned to raise the contents of the draft letter with DOJ officials a full week before the NSBA’s letter was issued.90 This cooperation by a third-party group, the White House, and the DOJ to craft and coordinate a response to an ill-advised and politically motivated letter under- mines the department’s credibility as an impartial law enforcement agency. In the words of the 14 state Attorneys General who wrote to oppose the department’s memorandum, “potential collusion between the White House, the Department, and the NSBA in the actual creation of the September 29 letter—as a pretext for threats against parents—raises serious concerns.”91 The DOJ should carefully scrutinize all requests for law enforcement assis- tance and reject requests by third parties to engage in political grandstanding that ignores the department’s traditional jurisdictional limits and that would trample politically controversial but constitutionally protected activity. Ensuring Proper Distribution of DOJ Grant Funds. DOJ grants are an underutilized asset in most conservative Administrations. When used properly, they can be highly effective in implementing the President’s priorities. The Office of Justice Programs (OJP) is comprised of six components and is responsible for most DOJ grants to local law enforcement, juvenile justice, and victims of crime as well as for criminal justice research and statistics. The opportunity to support a President’s agenda may be greater through OJP grant funding than it is through any of the federal government’s other grant-making components.

— 563 — Department of Justice Voter fraud includes unlawful practices concerning voter registration and ballot correction. When state legislatures are silent as to procedures for absentee ballot curing or provide specific rules governing that curing, neither counties nor courts may create a cure right where one does not exist, may not modify the law on curing, and certainly cannot engage in creating consent orders with the force of law that are inconsistent with the orders of other similarly situated counties. The DOJ has ceded substantial discretion concerning voter suppression to the Civil Rights Division. Since the Bush Administration, DOJ leadership has determined that using the Election Crimes Branch to prosecute fraudulent voter registration, including mail-in ballot fraud, was too politically costly.78 The Crim- inal Division’s Federal Prosecution of Election Offenses handbook advised that schemes that violated equal protection constituted “voter suppression” prosecut- able under 18 U.S. Code § 241 as part of the guidelines for which the department’s criminal prosecutors were trained.79 State-based investigations of election crimes are supposed to be referred to the Public Integrity Section for review. Historically, 18 U.S. Code § 241 (conspiracy against rights) was used as a basis for investigating state officials whose statements or orders violated the equal protection rights of voters or deliberately misinformed voters concerning the eligibility of their ballots. Nevertheless, the Department of Justice has formalized the Civil Rights Divi- sion’s (as opposed to the Criminal Division’s) jurisdiction over 18 U.S. Code § 241 investigations and prosecutions. The Criminal Division is no longer involved in consultation or review of 18 U.S. Code § 241 investigations.80 The Criminal Division has accordingly advised states that “[i]n the case of a crime of violence or intimida- tion,” they should “call 911 immediately and before contacting federal authorities” because “[s]tate and local police have primary jurisdiction over polling places,”81 despite clearly applicable federal law. This is a mistake. With respect to the 2020 presidential election, there were no DOJ investigations of the appropriateness or lawfulness of state election guidance. Consider the state of Pennsylvania. The Secretary of State sent guidance to the counties stating that: This revised guidance addresses the issuance, voting and examination of provisional ballots under the Election Code. Provisional ballots were originally mandated by section 302 of the Help America Vote Act of 2002 (HAVA). Provisional ballot amendments included in Act 77 of 2019 went into effect for the 2020 Primary election. Provisional ballot amendments included in Act 12 of 2020 go into effect for the first time on November 3, 2020.82 HAVA, however, mandates provisional ballots only for eligible voters who were not on a state’s voter registration list.83 It does not apply to those who registered for mail-in voting but whose ballots were rejected due to some form of spoliation. — 564 — Mandate for Leadership: The Conservative Promise Pennsylvania Act 12 (amended in 2020) does not authorize curing by providing provisional ballots for mail-in voters whose ballots were rejected. Act 12 requires, as part of the mail-in application process, an affidavit that: [The elector] shall not be eligible to vote at a polling place on election day unless the elector brings the elector’s mail-in ballot to the elector’s polling place, remits the ballot and the envelope containing the declaration of the elector to the judge of elections to be spoiled and signs a statement subject to the penalties under 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities) to the same effect.84 The law in Pennsylvania clearly states that no county may affirmatively provide provisional ballots: The mail-in voter must vote in person and sign a new affidavit. In the 2020 election, the Pennsylvania Supreme Court recognized that “the Election Code contains no requirement that voters whose ballots are deemed inadequately verified be apprised of this fact. Thus, unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects in a timely man- ner.”85 Given the Pennsylvania Secretary of State’s use of guidance to circumvent state law, the Pennsylvania Secretary of State should have been (and still should be) investigated and prosecuted for potential violations of 18 U.S. Code § 241. Investigations and prosecutions under 18 U.S. Code § 241 are currently within the jurisdictional oversight of the Civil Rights Division, not the Criminal Division.86 Only by moving authority for 18 U.S. Code § 241 investigations and prosecutions back to the Criminal Division will the rule of law be appropriately enforced. Rejecting Third-Party Requests for Politically Motivated Investigations or Prosecutions. The DOJ should reject demands from third-party groups that ask it to threaten politically motivated investigation or prosecution of those engag- ing in lawful and, in many cases, constitutionally protected activity. By acceding to such demands, the department risks diminishing its credibility with the American public. This risk is exacerbated by the fact that communications between govern- ment officials and third-party groups are generally unprotected by privilege and subject to disclosure, whether via subpoena to the third-party group or via request made pursuant to the Freedom of Information Act. These communications can even be made public voluntarily by the third-party group. A recent example illustrates the risks posed by such activity. On October 4, 2021, Attorney General Merrick Garland issued a memorandum to the Director of the FBI, the Executive Office for U.S. Attorneys, and the Assistant Attorney General, Criminal Division, calling on the FBI to work with each U.S. Attorney to “con- vene meetings with federal, state, local, Tribal, and territorial leaders” to discuss strategies for addressing “threats against school administrators, board members, teachers, and staff.”87 Subsequent reporting and investigation revealed that the

— 563 — Department of Justice Voter fraud includes unlawful practices concerning voter registration and ballot correction. When state legislatures are silent as to procedures for absentee ballot curing or provide specific rules governing that curing, neither counties nor courts may create a cure right where one does not exist, may not modify the law on curing, and certainly cannot engage in creating consent orders with the force of law that are inconsistent with the orders of other similarly situated counties. The DOJ has ceded substantial discretion concerning voter suppression to the Civil Rights Division. Since the Bush Administration, DOJ leadership has determined that using the Election Crimes Branch to prosecute fraudulent voter registration, including mail-in ballot fraud, was too politically costly.78 The Crim- inal Division’s Federal Prosecution of Election Offenses handbook advised that schemes that violated equal protection constituted “voter suppression” prosecut- able under 18 U.S. Code § 241 as part of the guidelines for which the department’s criminal prosecutors were trained.79 State-based investigations of election crimes are supposed to be referred to the Public Integrity Section for review. Historically, 18 U.S. Code § 241 (conspiracy against rights) was used as a basis for investigating state officials whose statements or orders violated the equal protection rights of voters or deliberately misinformed voters concerning the eligibility of their ballots. Nevertheless, the Department of Justice has formalized the Civil Rights Divi- sion’s (as opposed to the Criminal Division’s) jurisdiction over 18 U.S. Code § 241 investigations and prosecutions. The Criminal Division is no longer involved in consultation or review of 18 U.S. Code § 241 investigations.80 The Criminal Division has accordingly advised states that “[i]n the case of a crime of violence or intimida- tion,” they should “call 911 immediately and before contacting federal authorities” because “[s]tate and local police have primary jurisdiction over polling places,”81 despite clearly applicable federal law. This is a mistake. With respect to the 2020 presidential election, there were no DOJ investigations of the appropriateness or lawfulness of state election guidance. Consider the state of Pennsylvania. The Secretary of State sent guidance to the counties stating that: This revised guidance addresses the issuance, voting and examination of provisional ballots under the Election Code. Provisional ballots were originally mandated by section 302 of the Help America Vote Act of 2002 (HAVA). Provisional ballot amendments included in Act 77 of 2019 went into effect for the 2020 Primary election. Provisional ballot amendments included in Act 12 of 2020 go into effect for the first time on November 3, 2020.82 HAVA, however, mandates provisional ballots only for eligible voters who were not on a state’s voter registration list.83 It does not apply to those who registered for mail-in voting but whose ballots were rejected due to some form of spoliation.