How does the law treat an attempt to vote twice in the same election? In a federal election, voting more than once is banned everywhere in the United States. But what if you go to the polling booth with the intent of voting a second time in the same election and are caught before you actually cast the second vote? Can you still be prosecuted? The answer is unclear.
According to the National Conference of State Legislatures, 28 states have laws on their books making voting in the same election a felony. Many others make the practice a misdemeanor or infraction. However, with the presidential election, federal law applies. Under federal law, as set forth in Title 52, “Whoever votes more than once in an election… shall be fined not more than $10,000 or imprisoned not more than five years, or both.” The only exception allowed under the federal statute are instances where it can be shown that all prior ballots from the voter were invalidated.
The double jeopardy provisions of the Fifth Amendment to the United States Constitution do not prevent a person from being prosecuted at both the state level and federal level (see Gamble v. United States). Furthermore, many of the state penalties for intentionally voting twice in the same election are much harsher than the federal penalties. For example, in Georgia, a conviction could lead to ten years in prison and up to $100,000 in fines. Be warned—the Georgia secretary of state has indicated that he will prosecute anyone who intentionally attempts to vote twice “to the fullest extent of the law.”
The answer to this question is unclear.
Under the criminal laws of the United States, to be convicted of a crime, you must be shown to have had the requisite frame of mind (the so-called “mens rea”) and engaged in some act to perpetrate the crime (the “actus reus”). The required state of mind for a criminal offense can be intent, recklessness, or negligence. You can’t be convicted of a crime that you actually committed if you lacked the required state of mind. For example, if you negligently or carelessly committed a crime that requires intent, you won’t be convicted.
The language of the federal statute that prohibits voting twice in the same election does not specify the required frame of mind. It simply states that “whoever votes more than once” shall be subject to prosecution. Accordingly, it could be argued that any incident of multiple voting in the same election is illegal, even if the person does not intend to do so (for example, if they mistakenly believe the first ballot was invalidated or never counted).
Likewise, you cannot be convicted for merely thinking about committing a crime—you must take some step toward committing the crime. The key question, with respect to attempting to vote twice, is whether or not the mere act of showing up at the polling place with the necessary intent qualifies as an illegal act. Ultimately, if you are prosecuted for an unsuccessful attempt to vote twice, the jury may have to decide whether you committed a wrongful act.
It’s long been a principle of criminal law that a person who attempts to commit a crime but fails, should not avoid responsibility. If you try to kill someone, but your shot misses, you still had the necessary intent to murder and committed an act to do so. As a general rule, though, crimes of attempt (attempted assault, attempted murder, etc.) are separate crimes specifically set forth in separate statutes. Federal statutes do not specify that attempting to vote twice is a separate crime, leaving it uncertain whether one can be charged with attempting to cast two ballots in the same federal election.