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PAG LIN 1 1 Section 1. NEW SECTION. 39A.1 TITLE AND PURPOSE – 1 2 ELECTION OFFICIALS DEFINED. 1 3 1. This chapter may be cited and referred to as the 1 4 "Election Misconduct and Penalties Act". 1 5 2. The purpose of this chapter is to identify actions 1 6 which threaten the integrity of the election process and to 1 7 impose significant sanctions upon persons who intentionally 1 8 commit those acts. It is the intent of the general assembly 1 9 that offenses with the greatest potential to affect the 1 10 election process be vigorously prosecuted and strong 1 11 punishment meted out through the imposition of felony 1 12 sanctions which, as a consequence, removes the voting rights 1 13 of the offenders. Other offenses are still considered 1 14 serious, but based on the factual context in which they arise, 1 15 they may not rise to the level of offenses to which felony 1 16 penalties attach. The general assembly also recognizes that 1 17 instances may arise in which technical infractions of chapters 1 18 39 through 53 may occur which do not merit any level of 1 19 criminal sanction. In such instances, administrative notice 1 20 from the state or county commissioner of elections is 1 21 sufficient. Mandates or proscriptions in chapters 39 through 1 22 53 which are not specifically included in this chapter shall 1 23 be considered to be directive only, without criminal sanction. 1 24 3. For the purposes of this chapter, "election officials" 1 25 include the state commissioner, the county commissioner, 1 26 employees of the state commissioner and county commissioner 1 27 who are responsible for carrying out functions or duties under 1 28 chapters 39 through 53, and precinct election officials 1 29 appointed pursuant to sections 49.12, 49.14, 49.18, and 53.23. 1 30 Sec. 2. NEW SECTION. 39A.2 ELECTION MISCONDUCT IN THE 1 31 FIRST DEGREE. 1 32 1. A person commits the crime of election misconduct in 1 33 the first degree if the person willfully commits any of the 1 34 following acts: 1 35 a. REGISTRATION FRAUD. Produces, procures, submits, or 2 1 accepts voter registration applications that are known by the 2 2 person to be materially false, fictitious, forged, or 2 3 fraudulent. 2 4 b. VOTE FRAUD. 2 5 (1) Destroys, delivers, or handles an application for a 2 6 ballot or an absentee ballot with the intent of interfering 2 7 with the elector's right to vote. 2 8 (2) Produces, procures, submits, or accepts ballots or 2 9 absentee ballots, or produces, procures, casts, accepts, or 2 10 tabulates ballots that are known by the person to be 2 11 materially false, fictitious, forged, or fraudulent. 2 12 (3) Votes or attempts to vote more than once at the same 2 13 election, or voting or attempting to vote at any election 2 14 knowing oneself not to be qualified. 2 15 (4) Otherwise deprives, defrauds, or attempts to deprive 2 16 or defraud the citizens of this state of a fair and 2 17 impartially conducted election process. 2 18 c. DURESS. Intimidates, threatens, or coerces, or 2 19 attempts to intimidate, threaten, or coerce, any person who 2 20 does any of the following: 2 21 (1) Registers to vote, or votes, or attempts to register 2 22 to vote. 2 23 (2) Urges or aids any person to register to vote, to vote, 2 24 or to attempt to register to vote. 2 25 (3) Exercises any right under chapters 39 through 53. 2 26 d. BRIBERY. 2 27 (1) Pays, offers to pay, or causes to be paid money or any 2 28 other thing of value to a person to influence the person's 2 29 vote. 2 30 (2) Pays, offers to pay, or causes to be paid money or 2 31 other thing of value to an election official conditioned on 2 32 some act done or omitted to be done contrary to the person's 2 33 official duty in relation to an election. 2 34 (3) Receives money or any other thing of value knowing 2 35 that it was given in violation of subparagraph (1) or (2). 3 1 e. CONSPIRACY. Conspires with or acts as an accessory 3 2 with another to commit an act in violation of paragraphs "a" 3 3 through "d". 3 4 2. Election misconduct in the first degree is a class "D" 3 5 felony. 3 6 Sec. 3. NEW SECTION. 39A.3 ELECTION MISCONDUCT IN THE 3 7 SECOND DEGREE. 3 8 1. A person commits the crime of election misconduct in 3 9 the second degree if the person willfully commits any of the 3 10 following acts: 3 11 a. INTERFERENCE WITH VALIDITY OF ELECTION. 3 12 (1) Possesses an official ballot outside of the voting 3 13 room unless the person is an election official or other person 3 14 authorized by law. 3 15 (2) Makes or possesses a counterfeit of an official 3 16 election ballot. 3 17 (3) Solicits or encourages a person to vote in an election 3 18 knowing that person is not qualified to vote in that election. 3 19 b. ACTIONS BY ELECTION OFFICIAL. As an election official: 3 20 (1) Refuses to register a person who is entitled to 3 21 register to vote under chapter 48A. 3 22 (2) Accepts a fee from an applicant applying for 3 23 registration. 3 24 (3) While the polls are open, opens a ballot received from 3 25 a voter, except as permitted by law. 3 26 (4) Marks a ballot by folding or otherwise so as to be 3 27 able to recognize it. 3 28 (5) Attempts to learn how a voter marked a ballot. 3 29 (6) Causes a voter to cast a vote contrary to the voter's 3 30 intention or wishes. 3 31 (7) Changes any ballot, or in any way causes any vote to 3 32 be recorded contrary to the intent of the person casting that 3 33 vote. 3 34 (8) Allows a person to do any of the acts proscribed by 3 35 subparagraphs (1) through (7). 4 1 2. Election misconduct in the second degree is an 4 2 aggravated misdemeanor. 4 3 Sec. 4. NEW SECTION. 39A.4 ELECTION MISCONDUCT IN THE 4 4 THIRD DEGREE. 4 5 1. A person commits the crime of election misconduct in 4 6 the third degree if the person willfully commits any of the 4 7 following acts: 4 8 a. ELECTION DAY ACTS. Any of the following on election 4 9 day: 4 10 (1) Loitering, congregating, electioneering, posting of 4 11 signs, treating voters, or soliciting votes, during the 4 12 receiving of the ballots, either on the premises of any 4 13 polling place or within three hundred feet of any outside door 4 14 of any building affording access to any room where the polls 4 15 are held, or of any outside door of any building affording 4 16 access to any hallway, corridor, stairway, or other means of 4 17 reaching the room where the polls are held. This subparagraph 4 18 shall not apply to the posting of signs on private property 4 19 not a polling place, except that the placement of a sign that 4 20 is more than ninety square inches in size on a motor vehicle, 4 21 trailer, or semitrailer, or any attachment to a motor vehicle, 4 22 trailer, or semitrailer parked on public property within three 4 23 hundred feet of a polling place is prohibited. 4 24 (2) Interrupting, hindering, or opposing any voter while 4 25 in or approaching the polling place for the purpose of voting. 4 26 (3) As a voter, allowing any person to see how the voter's 4 27 ballot is marked. 4 28 (4) As a voter, submitting a false statement as to the 4 29 voter's ability to mark a ballot. 4 30 (5) Interfering or attempting to interfere with a voter 4 31 when the voter is inside the enclosed voting space, or when 4 32 the voter is marking a ballot. 4 33 (6) Endeavoring to induce a voter to show how the voter 4 34 marks or has marked a ballot. 4 35 (7) Marking, or causing in any manner to be marked, on any 5 1 ballot, any character for the purpose of identifying such 5 2 ballot. 5 3 b. ACTIONS BY ELECTION OFFICIAL. As an election official: 5 4 (1) Serving as a member of a challenging committee or 5 5 observer under section 49.104, subsection 2, 5, or 6, while 5 6 serving as a precinct election official at the polls. 5 7 (2) Failing to perform duties prescribed by chapters 39 5 8 through 53, or performance of those duties in such a way as to 5 9 hinder the object of the law. 5 10 (3) Disclosing the manner in which a person's ballot has 5 11 been voted to anyone except as ordered by a court. 5 12 (4) Failing to carry out a duty with relation to open and 5 13 equal access to public records under the provisions of chapter 5 14 22 with respect to records that relate to an election or voter 5 15 registration. 5 16 (5) Furnishing a voter with a ballot other than the proper 5 17 ballot to be used at that election. 5 18 (6) Making or consenting to any false entry on the list of 5 19 voters or poll books. 5 20 (7) Placing or permitting another election official to 5 21 place anything other than a ballot into a ballot box as 5 22 provided in section 49.85, or permitting any person other than 5 23 an election official to place anything into a ballot box. 5 24 (8) Taking out of a ballot box, or permitting to be so 5 25 taken out, any ballot deposited in the ballot box, except in 5 26 the manner prescribed by law. 5 27 (9) Destroying or altering any ballot which has been given 5 28 to an elector. 5 29 (10) Permitting any person to vote in a manner prohibited 5 30 by law. 5 31 (11) Refusing or rejecting the vote of any voter qualified 5 32 to vote. 5 33 (12) Wrongfully doing any act or refusing to act for the 5 34 purpose of avoiding an election, or of rendering invalid the 5 35 ballots cast from any precinct or other district. 6 1 (13) Having been deputized to carry the poll books of any 6 2 election to the place where they are to be canvassed, failing 6 3 to deliver them to such place, safe, with seals unbroken, and 6 4 within the time specified by law. 6 5 c. MISCELLANEOUS OFFENSES. 6 6 (1) As a party committee member or a primary election 6 7 officer or public officer upon whom a duty is imposed by 6 8 chapter 43 or by a statute applicable to chapter 43, by 6 9 neglecting to perform any such duty, or performing any such 6 10 duty in such a way as to hinder the object of the statute, or 6 11 by disclosing to anyone, except as may be ordered by any court 6 12 of justice, the manner in which a ballot may have been voted. 6 13 (2) As a person who is designated pursuant to section 43.4 6 14 to report the results of a precinct caucus as it relates to 6 15 the selection and reporting of delegates selected as part of 6 16 the presidential nominating process or who is designated 6 17 pursuant to section 43.4 to tabulate and report the number of 6 18 persons attending the caucus favoring each presidential 6 19 candidate, by failing to perform those duties, falsifying the 6 20 information, or omitting information required to be reported 6 21 under section 43.4. 6 22 (3) By making a false answer under the provisions of 6 23 chapter 43 relative to the person's qualifications and party 6 24 affiliations. 6 25 (4) Paying, offering to pay, or receiving compensation for 6 26 voter registration assistance in violation of section 48A.25. 6 27 (5) Using voter registration information in violation of 6 28 section 48A.39. 6 29 (6) As a candidate, by making a promise to name or appoint 6 30 another person to a position or secure a position for another 6 31 person in violation of section 49.120. 6 32 (7) Soliciting the use of influence from any candidate in 6 33 violation of section 49.121. 6 34 (8) As a public official or employee, or a person acting 6 35 under color of a public official or employee, by knowingly 7 1 requiring a public employee to act in connection with an 7 2 absentee ballot in violation of section 53.7. 7 3 (9) As a person designated by the commissioner or by the 7 4 elector casting an absentee ballot, by failing to return an 7 5 absentee ballot in violation of section 53.35A. 7 6 (10) As an incumbent officeholder of, or a candidate for, 7 7 an office being voted for at the election in progress, by 7 8 serving as a member of a challenging committee or observer 7 9 under section 49.104, subsection 2, 5, or 6. 7 10 2. Election misconduct in the third degree is a serious 7 11 misdemeanor. 7 12 Sec. 5. NEW SECTION. 39A.5 ELECTION MISCONDUCT IN THE 7 13 FOURTH DEGREE. 7 14 1. A person commits the crime of election misconduct in 7 15 the fourth degree if the person willfully commits any of the 7 16 following acts: 7 17 a. ELECTION DAY ACTS. 7 18 (1) As an employer, by denying an employee the privilege 7 19 conferred by section 49.109, or subjecting an employee to a 7 20 penalty or reduction of wages because of the exercise of that 7 21 privilege. 7 22 (2) Failing or refusing to comply with any order or 7 23 command of an election official made in pursuance of the 7 24 provisions of chapter 49 to which another penalty does not 7 25 apply. 7 26 (3) Circulating, communicating, or attempting to circulate 7 27 or communicate information with reference to the result of the 7 28 counted ballots or making a compilation of vote subtotals 7 29 before the polls are closed in violation of section 51.11, 7 30 52.40, or 53.23. 7 31 (4) Destroying, defacing, tearing down, or removing any 7 32 list of candidates, card of instruction, or sample ballot 7 33 posted as provided by law prior to the closing of the polls. 7 34 (5) Removing or destroying the supplies or articles 7 35 furnished for the purpose of enabling voters to prepare their 8 1 ballots. 8 2 (6) Violating or attempting to violate any of the 8 3 provisions or requirements of chapter 49 to which another 8 4 penalty does not apply. 8 5 b. MISCELLANEOUS OFFENSES. 8 6 (1) A public employee acting in connection with an 8 7 absentee ballot in violation of section 53.7. 8 8 (2) A person neglecting or refusing to return an absentee 8 9 ballot in violation of section 53.35, or a person violating 8 10 any other provision of chapter 53 for which another penalty is 8 11 not provided. 8 12 (3) Filing a challenge containing false information under 8 13 section 48A.14. 8 14 2. Election misconduct in the fourth degree is a simple 8 15 misdemeanor. 8 16 Sec. 6. NEW SECTION. 39A.6 TECHNICAL INFRACTIONS – 8 17 NOTICE. 8 18 If the state commissioner or county commissioner becomes 8 19 aware of an apparent technical violation of any of the 8 20 provisions of chapters 39 through 53, the state commissioner 8 21 or county commissioner may administratively provide a written 8 22 notice and letter of instruction to the responsible persons 8 23 regarding proper compliance procedures. This notice is not a 8 24 final determination of facts or law in the matter, and does 8 25 not entitle a person to a proceeding under chapter 17A. 8 26 Sec. 7. Section 39.3, subsection 8, Code 1999, is amended 8 27 to read as follows: 8 28 8. "Infamous crime" means a felony as defined in section 8 29 701.7, or an offense classified as a felony under federal law 8 30 or under the laws of another state. 8 31 Sec. 8. Section 48A.6, subsection 1, Code 1999, is amended 8 32 to read as follows: 8 33 1. A person who has been convicted of a felony as defined 8 34 in section 701.7, or convicted of an offense classified as a 8 35 felony under federal law or under the laws of another state. 9 1 If the person's rights are later restored by the governor, or 9 2 by the president of the United States, the person may register 9 3 to vote. 9 4 Sec. 9. Section 48A.25, unnumbered paragraph 1, Code 1999, 9 5 is amended to read as follows: 9 6 A person may pay, offer to pay, or accept compensation for 9 7 assisting others in completing voter registration forms only 9 8 if the compensation is based solely on the time spent 9 9 providing the assistance. Paying, offering to pay, or 9 10 receiving compensation based on the number of registration 9 11 forms completed, or the party affiliations shown on completed 9 12 registration forms, or on any other performance criteria, isa9 13serious misdemeanorunlawful. 9 14 Sec. 10. Section 48A.30, subsection 1, paragraph d, Code 9 15 1999, is amended to read as follows: 9 16 d. The clerk of the district court, or the United States 9 17 attorney, or the state registrar sends notice of the 9 18 registered voter's conviction of a felony as defined in 9 19 section 701.7, or conviction of an offense classified as a 9 20 felony under federal law or under the laws of another state. 9 21 The clerk of the district court shall send notice of a felony 9 22 conviction to the state registrar of voters. The state 9 23 registrar may also receive notices of felony convictions 9 24 obtained under federal law or under the laws of another state. 9 25 The registrar shall determine in which county the felon is 9 26 registered to vote, if any, and shall notify the county 9 27 commissioner of registration for that county of the felony 9 28 conviction. 9 29 Sec. 11. Section 48A.39, Code 1999, is amended to read as 9 30 follows: 9 31 48A.39 USE OF REGISTRATION INFORMATION– PENALTY. 9 32 Information about individual registrants obtained from 9 33 voter registration records shall be used only to request the 9 34 registrant's vote at an election, or for another genuine 9 35 political purpose, or for a bona fide official purpose by an 10 1 elected official, or for bona fide political research, but 10 2 shall not be used for any commercial purposes.A person who10 3uses registration information in violation of this section10 4commits a serious misdemeanor.10 5 Sec. 12. Section 49.92, Code 1999, is amended to read as 10 6 follows: 10 7 49.92 VOTING MARK. 10 8 The instructions appearing on the ballot shall describe the 10 9 appropriate mark to be used by the voter. The mark shall be 10 10 consistent with the requirements of the voting system in use 10 11 in the precinct. The voting mark used on paper ballots may be 10 12 a cross or check which shall be placed in the voting targets 10 13 opposite the names of candidates. The fact that the voting 10 14 mark is made by an instrument other than a black lead pencil 10 15 shall not affect the validity of the ballot unless it appears 10 16 that the color or nature of the mark is intended to identify 10 17 or recognize the ballotcontrary to the intent of section10 1849.107, subsection 7. 10 19 Sec. 13. Section 52.40, subsection 4, Code 1999, is 10 20 amended to read as follows: 10 21 4. The tabulation of ballots received from early pick-up 10 22 sites shall be conducted at the counting center during the 10 23 hours the polls are open, in the manner provided in sections 10 24 52.36 and 52.37, except that the room in which the ballots are 10 25 being counted shall not be open to the public during the hours 10 26 in which the polls are open and the room shall be policed so 10 27 as to prevent any person other than those whose presence is 10 28 authorized by this section and sections 52.36 and 52.37 from 10 29 obtaining information about the progress of the count. The 10 30 only persons who may be admitted to that room, as long as 10 31 admission does not impede the progress of the count, are the 10 32 members of the board, one challenger representing each 10 33 political party, one observer representing any nonparty 10 34 political organization or any candidate nominated by petition 10 35 pursuant to chapter 45, and the commissioner or the 11 1 commissioner's designee. No compilation of vote subtotals 11 2 shall be made while the polls are open.Any person who makes11 3a compilation of vote subtotals before the polls are closed11 4commits a simple misdemeanor.It shall be unlawful for any 11 5 person to communicate or attempt to communicate, directly or 11 6 indirectly, information regarding the progress of the count at 11 7 any time before the polls are closed. 11 8 Sec. 14. Section 53.7, subsection 2, Code 1999, is amended 11 9 to read as follows: 11 10 2.AnyIt is unlawful for any public officer or employee, 11 11 or any person acting under color of a public officer or 11 12 employee,whoto knowinglyrequires thatrequire a public 11 13 employee solicit an application or request for an application 11 14 for an absentee ballot, or knowingly requires that an employee 11 15 take an affidavit or request for an affidavit in connection 11 16 with an absentee ballot application, commits a serious11 17misdemeanor. 11 18 Sec. 15. Section 53.35, Code 1999, is amended to read as 11 19 follows: 11 20 53.35 REFUSAL TO RETURN BALLOT. 11 21AnyIt is unlawful for any personwho, having procured an 11 22 official ballot or ballots,shallto willfully neglect or 11 23 refuse to cast or return the same in the manner provided, or11 24who shall willfully violate any provision of this chapter,11 25shall, unless otherwise provided, be guilty of a simple11 26misdemeanor. Any person who applies for a ballot and 11 27 willfully neglects or refuses to return the same shall be 11 28 deemed to have committed an offense in the county to which 11 29 such ballot was returnable. 11 30 Sec. 16. Section 53.35A, Code 1999, is amended to read as 11 31 follows: 11 32 53.35A FAILURE TO RETURN BALLOT – PENALTY. 11 33AnyIt is unlawful for any person designated by the 11 34 commissioner, or by the elector casting the absentee ballot, 11 35 to deliver the sealed envelope containing the absentee ballot, 12 1whoto willfullyfailsfail to return the ballot to the 12 2 commissioner or the commissioner's designee, is guilty of a12 3serious misdemeanor. 12 4 Sec. 17. Section 53.49, Code 1999, is amended to read as 12 5 follows: 12 6 53.49 APPLICABLE TO ARMED FORCES AND OTHER CITIZENS. 12 7 The provisions of this division as to absent voting shall 12 8 apply only to absent voters in the armed forces of the United 12 9 States as defined for the purpose of absentee voting in 12 10 section 53.37. The provisions of sections 53.1to 53.36,12 11 through 53.35 shall apply to all other qualified voters not 12 12 members of the armed forces of the United States. 12 13 Sec. 18. Sections 43.119, 43.120, 48A.41, 49.107, 49.110, 12 14 49.111, 49.113, 49.119, 51.16, 51.17, 53.36, 722.4, 722.5, 12 15 722.6, 722.7, 722.8, and 722.9, Code 1999, are repealed. 12 16 EXPLANATION 12 17 This bill corrects internal inconsistencies in the Code 12 18 relating to election misconduct and creates a new Code chapter 12 19 39A to contain the criminal provisions relating to violations 12 20 of election laws and the penalties applicable to those 12 21 violations. 12 22 Four levels of criminal election misconduct are 12 23 established, with penalties ranging from simple misdemeanor to 12 24 class "D" felony penalties. Specific references to criminal 12 25 provisions and penalties in the current Code are restated in 12 26 the new chapter and stricken or repealed from existing Code. 12 27 The penalties for some violations are changed in the bill. 12 28 The bill makes the violation of communicating the vote count 12 29 prior to the closing of the polls a simple misdemeanor where 12 30 previously no specific penalty was provided for such a 12 31 violation. The bill makes it a serious misdemeanor for a 12 32 candidate to use influence on behalf of another in obtaining a 12 33 position in exchange for support during the election. 12 34 Previously, violation of this section was subject to the 12 35 general penalty provisions in Code chapter 49, which made it a 13 1 simple misdemeanor. 13 2 The bill upgrades various prohibited acts on election day 13 3 from simple to serious misdemeanors. The penalty for 13 4 willfully failing to perform duties or falsifying documents 13 5 relating to precinct caucuses is also changed from a simple 13 6 misdemeanor to a serious misdemeanor. 13 7 The penalty for certain misconduct by election officials is 13 8 changed from a serious misdemeanor to an aggravated 13 9 misdemeanor. This specifically includes misconduct by an 13 10 election official causing a voter to vote contrary to the 13 11 voter's wishes or changing a ballot or causing a vote to be 13 12 recorded contrary to the voter's intention. 13 13 Fraudulently registering to vote, giving false information 13 14 when registering to vote, or coercing someone to register or 13 15 to not register to vote is made a class "D" felony from an 13 16 aggravated misdemeanor. Bribery of voters or of election 13 17 officials, or bribery during the election process in general 13 18 is changed from serious or aggravated misdemeanors to class 13 19 "D" felonies. Also upgraded to a class "D" felony from a 13 20 serious misdemeanor are the charges of voting more than once 13 21 in an election or voting when knowing oneself not to be 13 22 qualified. 13 23 LSB 1309YC 78 13 24 sc/cf/24
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