California’s PEACE Act Provides Private Right of Action for Election Intimidation

Responding to an uptick in voter intimidation, in September 2024, California enacted AB 2642 (Berman, D-Palo Alto), the Protecting Elections from Armed Coercion and Extremism Act (PEACE Act). 

AB 2642 is a first-of-its kind legislation that provides a private right of action for individuals experiencing intimidation while engaging in voting-related activities—both at the polls and in many other locations. The law empowers individuals who have experienced such intimidation to sue and, if they prevail, recover attorneys’ fees, expert witness fees, and litigation expenses. Further, if an individual is accused of voter intimidation while openly carrying a firearm, the law establishes a presumption of liability. In sum, and as explained in greater detail below, AB 2642 provides a powerful cause of action for victims of voter intimidation in California.

Background

Before AB 2642’s passage, California was among the 25 states and Washington, D.C., with criminal statutes prohibiting voter intimidation and the carrying of firearms near polling places.[1] For example, California imposes criminal penalties for possession of firearm “in the immediate vicinity of . . . a polling place,” prohibits interference with an election officer, and penalizes the use of “intimidation tactic[s]” to induce a person to refrain from voting. Elec. Code §§ 18502, 18540, 1844. 

Despite these protections, an alarming number of voter intimidation incidents occurred in California between 2020 and 2024, which served as the impetus for AB 2642.[2] For instance, in Shasta County, individuals alleging voter fraud in the 2020 and 2022 elections “physically crowded election workers while they performed their duties, bombarded election offices with excessive public records requests, and falsely presented themselves as an ‘official taskforce’ when visiting voters’ homes.” There were also several voter intimidation incidents in San Luis Obispo County and Nevada County, including one in which individuals “forcibly entered [the Nevada County registrar-elect]’s office and assaulted a staffer.” See id.

With AB 2642, California also sought to strengthen its voter intimidation laws in light of prevailing Second Amendment precedent as clarified in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). Bruen held that broad concealed carry prohibitions like California’s contravened the Second Amendment, though it noted that states generally can regulate firearm possession in polling places without running afoul of the Second Amendment. See id. at 30. Thus, although California’s existing regulations prohibiting firearm possession and intimidation at the polls would likely survive a Second Amendment challenge, the California legislature feared that, with its concealed carry laws weakened in the face of Bruen, it was necessary to enact stronger legislation to deter voter intimidation and harassment at polling places and other places where voting- and election-related activities occur. 

Overview

AB 2642, codified in Election Code sections 18580 through 18582, addresses voter intimidation in several unique ways:

First, the bill creates a private right of action against anyone who has “intimidate[d], threaten[ed], [] coerce[d], or attempt[ed] to intimidate, threaten, or coerce, any other person for any of the following:” 

1. Voting or attempting to vote
2. Urging or aiding any person to vote or attempt to vote, whether as part of official election administration activity or otherwise
3. Exercising any powers or duties to administer elections, including counting votes, canvassing, and certifying an election in accordance with Division 15 of the Elections Code, relating to canvassing and counting the vote
4. That other person’s status as a past or present participant in the administration of elections

Elec. Code §§ 18581(a), 18582(a)–(b).

Second, the bill relieves the financial burden victims of voter intimidation may incur when bringing suit by allowing prevailing plaintiffs to recover attorneys’ fees, expert fees, and reasonable litigation expenses. Elec. Code § 18582(a). 

Third, the bill reduces the burden of proof for prospective plaintiffs because plaintiffs can prove intimidation without establishing that a defendant acted with an intent to intimidate. Elec. Code § 18582(f).[3]

Finally, AB 2642 creates a presumption of liability against anyone accused of intimidation who was openly carrying a firearm while “interacting with or observing” any of the above activities. Elec. Code § 18581(b). As stated, it is already a crime to possess a firearm at the polls in California, but AB 2642 opens the door to civil liability for individuals that openly carry firearms at the polls or anywhere else they may observe or interact with the enumerated voting-related activities.

Who Can Sue

Due to AB 2642, for the first time ever, victims of voter intimidation have a statutory mechanism to independently bring a private civil lawsuit. The presumption of liability against open-carriers and the fact that plaintiffs do not need to prove intent will ease the burden for victims of gun-related voter intimidation and allow them to obtain meaningful relief. The California attorney general may also seek equitable relief to enforce the statute. Notably, even where the attorney general or an election officer files suit seeking equitable relief on behalf of aggrieved voters, the voters can file a “contemporaneous private suit” seeking damages. Elec. Code § 18582(c), (d). Working together, and alongside the criminal penalties for voter intimidation at the polls, California law now provides three distinct types of legal for ramifications for those engaging in voter intimidation: possible criminal charges, a civil suit by the AG which could enjoin their use of a firearm, and a private civil suit seeking damages. 

Further, the bill expands the private right of action beyond voters to election officials and poll workers. Political parties, candidates, and political action committees who have their supporters targeted en masse could likewise seek redress under the law.

Importantly, AB 2642 is not limited to Election-Day or at-the-polls intimidation, providing a means for redressing a broader array of voting-related intimidation. For instance, the prohibition of “intimidation, threatening, [or] coercion” of individuals “urging … any person to vote … whether as part of official election administration activity or otherwise” could apply to voter registration activities, canvassing, initiative signature-gathering efforts, and political fundraisers, among other activities. Online voter intimidation could also fall within the ambit of the law, as advocates often “urge” individuals to vote for their preferred candidate or cause on the internet and through social media. While cyber harassment is already a crime in California,[4] the state has not codified a private right of action against online harassment, stalking, or bullying. AB 2642 provides this cause of action, where the bullying amounts to intimidation or coercion and involves elections and/or voting. And while voters could presumably sue online intimidators under tort theories prior to AB 2642’s enactment, the statute provides a much more direct mechanism for seeking redress than the common law, and the ability to recover fees and costs under the statute will make it a superior tool for seeking redress in many cases.

Status

Although there were several reports of voter intimidation incidents during the 2024 presidential election,[5] to date, no one has filed suit under AB 2642. This may be because the bill went into effect less than two months before Election Day, and voters, election officials, and poll workers were not broadly aware of the bill.[6] Regardless, as awareness grows, AB 2642 could play a significant role in counteracting voter intimidation in future California elections. 

Endnotes

[1] 18 states (including New York, Arizona, and Texas) and Washington, D.C., have total prohibitions on guns inside polling locations. Seven states have partial prohibitions.

[2] See, e.g., AB 2642 Senate Floor Analysis (Aug. 25, 2024), at 3–5; AB 2642 Assembly Floor Analysis (Aug. 22, 2024), at 1.

[3] “In order to prevail in a suit to enforce the provisions of this article, a plaintiff need not prove that a defendant intended to intimidate, threaten, or coerce any person, except in order to prove an attempt to intimidate, threaten, or coerce. A court may nonetheless consider evidence of intent in determining the appropriate relief.” Elec. Code § 18582(f).

[4] See Cal. Pen. Code § 653.2. 

[5] See, e.g., Tommy Gong and Tina Barton, "Amid Threats and Harassment, California Election Workers Persist to Protect our Vote," CalMatters, Nov. 6, 2024. 

[6] Further, although the constitutionality of the law has not been challenged in court, in September 2024, supervisors from Shasta County—the location of some of the voter intimidation events which led to AB 2642’s passage—sent a letter to California Governor Gavin Newsom raising concerns that AB 2642’s rebuttable presumption conflicts with the First and Second Amendments. See David Benda, "Shasta Supervisors’ Far-Right Majority says New Law Infringes on 2nd Amendment Gun Rights," Record Searchlight, Sept. 25, 2024.