Though the Office of Special Counsel has granted federal employees greater leeway in political expression after Election Day, the Department of Defense has notified its civilian and service-member employees that it plans to adhere to a stricter interpretation of the law governing such behavior.
The DoD released an article Nov. 10 explaining that when it comes to Hatch Act violations, displaying candidate support for the most recent election cycle will still be considered against the rules.
The difference between the DoD decision and OSC guidance — which states that employees may display candidate-specific materials now that Election Day has passed — largely comes down to whether certain political figures are considered candidates after all votes have been cast.
The Hatch Act is designed to ensure that the work of federal civil servants is not influenced by political motivations.
Under the OSC guidance, the political nature of certain materials that advocate for a specific candidate ends on Election Day, as federal employees cannot at that point influence an election where votes have already been cast, even if a winner has not yet been certified.
By contrast, the DoD has determined that workplace support for certain political candidates remains political until the results of the most recent election are certified.
“For example, display of a campaign sign reading ‘Gore-Lieberman’ or ‘Bush-Cheney’ would be permitted at any time because their presidential candidacies have ended. But display of a sign reading ‘Trump-Pence’ or ‘Biden-Harris’ would not be permitted until the results of the current election have been certified,” the DoD article states.
The date of certification varies from state to state, with some like Delaware and Oklahoma already past their certification deadline. States must certify by the “safe harbor” deadline, which occurs six days before electors are scheduled to meet and cast their votes, in order for the election results to remain undisputed.
Electors for each state cast their votes on Dec. 14 this year, and those votes are tabulated in Certificates of the Vote. Congress then meets Jan. 6 to count those electoral votes and declare a winner of the election.
The DoD does not have a role in that certification process — and therefore when certain forms of support no longer violate the Hatch Act — though according to OSC the individuals running for office officially cease to become candidates on Jan. 6, when Congress meets to count and determine the outcome of electoral votes.