Both the First and Second Restatement of Torts (in Section 865) recognized that certain intentional denials or abridgment of the right to vote constitute a common law tort. This has a long pedigree, going back to England, though common law remedies have been overshadowed in more recent years by statutory and constitutional claims. Still, as I and others have argued, there is good reason to keep common law tort liability as an important backstop and deterrent.
I’m thrilled to report that today the American Law Institute approved the final set of sections for the Restatement (Third) of Torts, Miscellaneous Provisions, led by co-Reporters Nora Engstrom and Mike Green. (Disclosure: I am an advisor on this project.) Among the approved sections is Section 8 on Miscellaneous Torts. The black letter of the section reads:
§ 8. Tortious Interference with a Right to Vote or Hold Office
(a) An actor is subject to liability to a person if the actor, by a consciously wrongful act, intentionally deprives the person of the lawful right to:
(1) vote in a public election; or
(2) hold public office.
(b) An actor is subject to liability to a person if the actor, by a consciously wrongful act, intentionally and seriously interferes with the person’s lawful right to:
(1) vote in a public election; or
(2) hold public office.
One of the key Comments explains that the mental state in this section applies “when an actor, who knows or should know that another has the right to vote in a public election or to hold public office, performs a consciously wrongful and intentional act. Both prerequisites—a (1) consciously wrongful act that (2) intentionally interferes with the right to vote or to hold public office—must be shown. Prong (1), the “consciously wrongful act,” includes, but is not limited to, actions involving force, fraud, duress, false imprisonment, bribery, misrepresentation, or the abuse of an official position. Meanwhile, prong (2) requires intention to interfere with the right to vote or to hold public office. . . . By the same token, one who, merely by negligence, prevents another from voting or holding public office is not subject to liability. Nor is an actor subject to liability if the actor prevents another from voting or holding public office intentionally but as the result of a reasonable mistake of fact or law. Accordingly, when a registrar of voters refuses to permit a person’s name to be added to the voting list, reasonably believing that the person is not a resident or, for whatever other legitimate reasons, is ineligible to vote, the registrar of voters is not subject to liability because the registrar has not engaged in a consciously wrongful act.”
The section also adds that it does not address any First Amendment issues that arise “when one uses speech or other expressive conduct to interfere with the right to vote or hold public office.”
Kudos to the reporters and to ALI!
