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ELECTION FRAUDDetecting and Deterring Electoral Manipulation
BROOKINGS INSTITUTION PRESSCopyright © 2008 THE BROOKINGS INSTITUTION
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Chapter OneCorruption of the Election Process under U.S. Federal Law Craig C. Donsanto
Election fraud can be viewed as a purely legal phenomenon. In this context, election fraud is whatever is defined in the law as such, though its definition can change as the social, political, and technological aspects of elections change. For example, you cannot have election fraud in the voter registration process until after states have adopted and developed voter registration requirements and lists. Even once voter registration systems are developed, the laws that govern fraud may change over time as conditions and technologies change.
In this chapter, I focus on election fraud as defined under federal law. These laws are intended to ensure that elections are free from corruption. This focus excludes two important areas from consideration: (1) state laws dealing with election fraud; and (2) efforts under federal law to prevent discrimination against minorities at the ballot box. State election laws may define fraud differently and cover different actions than federal law. And federal antidiscrimination issues involve entirely different constitutional and federal interests that center largely on implementation of the Voting Rights Act and its amendments.
What Is (and Is Not) Election Fraud?
Election fraud, as a criminal law concept, involves a substantive irregularity relating to the act of voting—such as bribery, intimidation, or forgery—that has the potential to taint the election. Over the past century and a half, Congress and the federal courts have articulated the following constitutional principles concerning the right to vote in the United States. Any activity intended to interfere corruptly with any of the following principles may be actionable as a federal crime:
—All qualified citizens are eligible to vote.
—All qualified voters have the right to have their votes counted fairly and honestly.
—Invalid ballots dilute the worth of valid ballots and therefore will not be counted.
—Every qualified voter has the right to make a personal and independent election decision.
—Qualified voters may opt not to participate in an election.
—Voting shall not be influenced by bribery or intimidation. Simply put, election fraud is conduct intended to corrupt the process by which ballots are obtained, marked, or tabulated; the process by which election results are canvassed and certified; or the process by which voters are registered. Schemes that involve corruption of other political processes (for example, political campaigning or the circulation of nominating petitions) do not normally serve as the basis for a federal election crime.
The following activities provide a basis for federal prosecution for election fraud. The laws are loosely categorized as follows:
Vote buying consists of paying voters to register to vote, or to participate in elections, in which a federal candidate is on the ballot.
Voter intimidation, in the context of a criminal case, can consist of preventing a voter from participating in an election where a federal candidate is on the ballot or encouraging a voter to participate in such an election through the application or threat of physical or economic duress.
Illegal voting and ballot box stuffing are both crimes. Illegal voting consists of voting in federal elections on behalf of individuals who do not personally participate in, and assent to, the voting act attributed to them. It also covers impersonating voters or casting ballots in the names of voters who do not vote in federal elections. Malfeasance by election officials acting "under color of law" by performing such acts as diluting valid ballots with invalid ones (ballot box stuffing), rendering false tabulations of votes, or preventing valid voter registrations or votes from being given effect in any election, federal or nonfederal, as well as in elections in which federal candidates are on the ballot, is illegal as well. Finally, knowingly making a false claim of U.S. citizenship in order to register to vote or to vote in any election, or falsely and willfully claiming U.S. citizenship for, inter alia, registering or voting in any election is a form of illegal voting.
Voter registration fraud can take several forms, including: (a) submitting fictitious names on voter registration rolls and thereby qualifying the ostensible voters to vote in federal elections; (b) knowingly procuring eligibility to vote for federal office by persons who are not entitled to vote under applicable state law, notably persons who have committed serious crimes (a law in approximately forty states) and persons who are not U.S. citizens (currently a law in all states); (c) providing false information concerning a person's name, address, or period of residence in a voting district in order to establish that person's eligibility to register or to vote in a federal election; or (d) causing the production of voter registrations that qualify alleged voters to vote for federal candidates, or the production of ballots in federal elections, that the actor knows are materially defective under applicable state law.
Various types of conduct that might adversely affect the election of a federal candidate may not constitute federal election crimes, despite what may be their reprehensible character. For example, a federal election crime does not currently involve irregularities relating to: (1) issuing inaccurate campaign literature; (2) campaigning too close to the polls; (3) the process by which a candidate obtains the withdrawal of an opponent; and (4) negligently failing to comply with state-mandated voting procedures (in the case of election officers). Also, "facilitation payments," things of value that are given to voters to make it easier for the voter to cast a ballot but that are not intended to stimulate or reward the voting act itself (for example, a ride to the polls, a stamp to mail in an absentee ballot) do not ordinarily constitute a federal crime.
Participating in Fraud
As a practical matter, election frauds fall into two categories: those in which individual voters do not participate in the fraud, and those in which they do. The investigative approach and prosecutive potential are different for each type of case. The first category involves voters who do not participate, in any way, in the voting act attributed to them. These offenses include ballot box stuffing, ghost voting, and "nursing home" voter fraud. Proof of these crimes depends largely on evidence generated by the voting process, or on handwriting examples taken from persons who had access to voting equipment and thus the opportunity to misuse it. Some of the more common ways these crimes are committed include placing fictitious names on the voter rolls, which allows for fraudulent ballots to be used to stuff the ballot box; casting bogus votes in the names of persons who did not vote; obtaining and marking absentee ballots without the active input of the voters involved; and falsifying vote tallies.
The second category of election fraud includes cases in which the voters do participate, at least to some extent, in the voting acts attributed to them. Common examples include vote-buying schemes; voter intimidation schemes; migratory voting (or floating voter) schemes; and voter "assistance" fraud, in which the wishes of the voters are ignored or not sought. Successful prosecution of these cases usually requires the cooperation and testimony of the voters whose ballots were corrupted. This requirement presents several difficulties. One problem is that the voters themselves may be technically guilty of participating in the scheme. However, because these voters can often be considered victims, federal prosecutors usually consider declining to prosecute them in exchange for truthful cooperation against organizers of such schemes.
A second difficulty encountered in cases where voters participate is that the voter's presence alone may suggest that he or she "consented" to the defendant's conduct (marking the ballot, taking the ballot, choosing the candidates, and so on). For example, in United States v. Salisbury (1993) the court left unanswered the question whether a voter who signs a ballot envelope at the defendant's instruction but is not allowed to choose the candidates has consented to having the defendant mark his or her ballot; but in United States v. Cole (1994) the court found that voters who merely signed ballots subsequently marked by the defendant were not expressing their own electoral preferences.
Although the presence of the ostensible voter when another marks his or her ballot does not negate whatever crime might be occurring, it may increase the difficulty of proving the crime. This difficulty is compounded when those who commit this type of crime target vulnerable members of society, such as persons who are uneducated, socially disadvantaged, or with little means of livelihood. Therefore, if the voter is present when another person marks his or her ballot, the evidence should show that the defendant either procured the voter's ballot through means that were themselves corrupt (such as bribery or threats), or that the defendant marked the voter's ballot without the voter's consent or input.
The Evolution of Federal Election Fraud Law
Federal interest in the integrity of the franchise dates back to Reconstruction, when Congress passed the Enforcement Acts, with the goal of protecting the political rights of newly enfranchised African Americans. These acts served as the basis for federal activism in prosecuting corruption of the franchise until most of them were repealed in the 1890s. They had broad jurisdictional predicates that allowed them to be applied to a wide variety of corrupt election practices as long as a federal candidate was on the ballot. The Supreme Court upheld this principle in Ex parte Coy (1888) by ruling that Congress had authority under the Constitution's "necessary and proper" clause to regulate any activity during a mixed federal/state election that exposed the federal election to potential harm, whether that harm materialized or not. Coy is still applicable law.
After Reconstruction, federal activism in election matters retrenched. The repeal of most of the Enforcement Acts eliminated the statutory tools that had encouraged federal activism in election fraud matters. Two surviving provisions of these acts, now embodied in Sections 241 and 242 of the U.S. Code, made it unlawful to intentionally deprive anyone of rights guaranteed directly by the Constitution or federal law. However, contemporary interpretations made it difficult to use these provisions to prosecute election fraud. Courts during this period held that the Constitution directly conferred a right to vote only for federal officers and that conduct aimed at corrupting nonfederal contests was not prosecutable in federal courts. Federal attention to election fraud was further limited by case law holding that primary elections were not part of the official election process (Newberry v. United States (1921)) and by cases like United States v. Bathgate (1918), which read the entire subject of vote buying out of federal criminal law, even when it was directed at federal contests.
In 1941, Supreme Court rulings in several cases began to expand and reshape federal involvement in elections. In United States v. Classic, the Court reversed direction and overturned the Newberry decision, recognizing that primary elections are an integral part of the process by which candidates are elected to office. In so doing, the Court ushered in a new period of federal activism. By the late 1960s, prosecutors had begun to expand their use of Section 241 to address election fraud. Since then, this statute has been successfully applied to prosecute election fraud that occurs "under color of law" (through corrupt official misconduct usually by election officials) in nonfederal elections as well as in elections where there are federal candidates on the ballot.
For decades, prosecutors also successfully used Section 1341, popularly known as the mail fraud statute, to target local election fraud, under the theory that such schemes defrauded citizens of their right to fair and honest elections. However, the mail fraud theory has been barred since 1987 when the Supreme Court held in McNally v. United States that Section 1341 did not apply to schemes to defraud someone of intangible rights, such as the right to honest provision of public services. Congress responded to McNally by enacting a provision that specifically defined Section 1341 to include schemes to defraud someone of "honest services." However, subsequent attempts by the Justice Department to apply the mail fraud statute to election crimes have proven largely unsuccessful.
In addition to these broad statutes, since the late 1950s Congress has enacted new criminal laws to combat false registrations, vote buying, multiple voting, and fraudulent voting in elections. These statutes rest on Congress's power to regulate federal elections and on its power under the "necessary and proper" clause to enact laws to protect the federal election process from the potential of corruption. They can be applied as long as either the name of a federal candidate is on the ballot or the fraud involves corruption of the voter registration process in a state where individuals register to vote simultaneously for federal and other offices.
Applying Election Fraud Statutes
There are two classes of federal criminal statutes related to election fraud, as shown in table 1-1. The first class applies to both federal and nonfederal elections. The second class of statutes is applicable to federal elections—including "mixed" elections that have both federal and nonfederal candidates—but not to purely nonfederal elections. In this section, I review these statutes to illustrate the types of election crimes that they are designed to address.
Conspiracy against Rights: 18 U.S.C. §241
Section 241 makes it unlawful for two or more persons to "conspire to injure, oppress, threaten, or intimidate any person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured by the Constitution or laws of the United States." Violations are punishable by imprisonment for up to ten years or, if death results, for any term of years or for life. The Supreme Court long ago recognized that the right to vote for federal offices is among the rights secured by Article I, Sections 2 and 4, of the Constitution, and hence is protected by Section 241. Although the statute was enacted just after the Civil War to address efforts to deprive the newly emancipated slaves of the basic rights of citizenship, such as the right to vote, it has been interpreted to include any effort to derogate any right that flows from the Constitution or from federal law. Section 241 has been an important statutory tool in election crime prosecutions. Originally held to apply only to schemes to corrupt elections for federal office, it has recently been successfully applied to nonfederal elections as well, provided that state action (action by an individual or entity representing the state) was a necessary feature of the fraud. This state action requirement can be met not only by the participation of poll officials, but also by activities of persons who clothe themselves with the appearance of state authority (for example, with uniforms, credentials, and badges).
Section 241 embraces conspiracies: (1) to stuff a ballot box with forged ballots; (2) to impersonate qualified voters; (3) to alter legal ballots; (4) to fail to count votes and to alter votes counted; (5) to prevent the official count of ballots in primary elections; (6) to destroy ballots; (7) to destroy voter registration applications; (8) to illegally register voters and cast absentee ballots in their names; and (9) to injure, threaten, or intimidate a voter in the exercise of his right to vote. Section 241 does not require that the conspiracy be successful or that there be proof of an overt act. Section 241 reaches conduct affecting the integrity of the federal election process as a whole and does not require fraudulent action with respect to any particular voter. On the other hand, Section 241 does not reach schemes to corrupt the balloting process through voter bribery, even schemes that involve poll officers to ensure that the bribed voters mark their ballots as they were paid to do. Section 241 prohibits only conspiracies to interfere with rights flowing directly from the Constitution or federal statutes. This element has led to considerable judicial speculation over the extent to which the Constitution protects the right to vote for candidates running for nonfederal offices. Although dicta in Reynolds v. Sims cast the parameters of the federally protected right to vote in extremely broad terms, in a ballot fraud case ten years later the Supreme Court specifically refused to decide whether the federally secured franchise extended to nonfederal contests.
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