Election law violations.

• Author: Rothschild, David C.
• Position: Twenty-Fourth Annual Survey of White Collar Crime

1. INTRODUCTION II. ELECTION FRAUD A. General Issues 1. Background 2. Jurisdiction 3. Prosecutorial Initiatives 4. Covered Statutes B. Voter Intimidation Statutes 1. Conspiracy Against Rights a. Background b. Scope i. Public Versus Private Schemes c. Penalties 2. Deprivation of Rights Under Color of Law a. Scope b. Penalties 3. Federally Protected Activities a. Background b. Scope c. Penalties 4. Intimidation of Voters a. Background b. Scope c. Penalties 5. Intimidating in Voting and Registering a. Background b. Scope c. Penalties 6. Troops at Polls a. Scope b. Penalties C. Voter Fraud Statutes 1. False Information in Registering or Voting a. Background b. Scope i. Furnishing False Information to an Election Official ii. Conspiracies to Encourage False Registration or Illegal Voting iii. Commercialization of the Vote c. Penalties 2. Fraudulent Registration or Voting a. Background b. Scope i. Fraudulent Registration ii. Fraudulent Voting c. Penalties d. Investigations 3. Voting More than Once a. Scope b. Penalties 4. False Citizenship Claims to Register or Vote a. Background b. Scope c. Penalties 5. Voting by Aliens D. Alternative Theories of Prosecution 1. Travel Act 2. Mail Fraud a. Background b. Theories of Mail Fraud i. Salary Theory ii. "Honest Services" Fraud c. Penalties III. CAMPAIGN FINANCE CRIMES A. General Issues 1. Background 2. Jurisdiction 3. Criminal Prosecution a. Sentencing 4. Covered Statutes B. FECA / BCRA In Depth 1. Limitations on Contributions and Expenditures 2. Contributions or Expenditures by National Banks, Corporations, or Labor Organizations 3. Contributions by Government Contractors 4. Contributions and Donations by Foreign Nationals 5. Contributions in Name of Another Prohibited 6. Limitation on Contribution of Currency 7. Fraudulent Misrepresentation of Campaign Authority 8. Soft Money of Political Parties 9. Use of Contributed Amounts for Certain Purposes I. INTRODUCTION

   Congress has enacted a number of statutes that seek to prevent and punish election law violations by public officials, candidates, and other political actors.

   Some of the statutes covered in this Article contain overlapping civil, criminal, and administrative penalty provisions. The Federal Election Commission ("FEC") has the jurisdiction to levy civil fines over all Federal Election Campaign Act ("FECA") (1) violations, including those committed "knowingly and willfully." (2) However, only the Department of Justice ("DOJ"), by and through Assistant United States Attorneys in the field and the Public Integrity Section in Washington, DC, may prosecute criminal FECA offenses. (3) To trigger criminal penalties, these offenses must have been committed "knowingly and willfully" and must involve aggregate amounts that satisfy certain monetary thresholds. (4) Other statutes mentioned fall solely within the jurisdiction of the DO J, such as election fraud involving federal elections. (5)

   Section II of this Article examines several election fraud offenses. Section III explores campaign finance crimes.

2. ELECTION FRAUD

   1. General Issues

      Election fraud typically aims to ensure that "important elected positions are occupied by 'friendly' candidates." (6) Election fraud implicates corruption in voter registration, balloting, and vote counting and certification. (7) The conditions most conducive to such fraud involve "close factional competition ... for an elected position that matters." (8) Election fraud is usually a precursor or companion to public corruption because "virtually all election crime is driven by a motive to control governmental power for some corrupt purpose." (9) Election fraud also includes violations relating to primary elections. (10)

      1. Background

         The first election laws passed by Congress were the Enforcement Acts, (11) which were enacted in the period immediately following the Civil War to protect the voting rights of African Americans and were repealed in the 1890s. (12) These statutes 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." (13) Discussing the basis for these statutes, the Supreme Court held in Ex parte Coy that "the [constitutional] power ... of [C]ongress to make such provisions as are necessary to secure the fair and honest conduct of an election at which a member of congress is elected ... cannot be questioned." (14) Coy is still good law. (15)

         Two Enforcement Acts provisions are in force today: 18 U.S.C. [section][section] 241 and 242, which govern deprivation and conspiracy to deprive rights "secured by the Constitution or laws of the United States." (16) From the 1890s until 1941, the courts construed the fight to sue in federal court for an election law violation narrowly, holding that "conduct aimed at corrupting nonfederal contests was not prosecutable in federal courts," (17) and that "primary elections were not part of the official election process." (18) In 1941, the Supreme Court reversed its previous jurisprudence with the seminal case United States v. Classic, where the Court held that Congress may regulate primary elections when they are "a step in the exercise by the people of their choice of representatives in Congress." (19) Classic paved the way for the Court's recognition, in 1964, of the "right to vote in a fairly conducted election as a constitutionally protected feature of United States citizenship." (20) The early 1970's saw an expanded use of 18 U.S.C. [section] 241 to address election fraud, including local election fraud. (21) The mail fraud statute (22) has also been used to reach local election fraud, (23) but this approach was largely circumscribed in the 1987 Supreme Court case McNally v. United States. (24) The last few decades brought about "new criminal laws with broad jurisdictional bases to combat false voter registrations, vote buying, multiple voting, and fraudulent voting in elections in which a federal candidate is on the ballot." (25)

      2. Jurisdiction

         Congress derives its power to legislate election fraud statutes pursuant to its constitutional authority to regulate federal elections. (26) Federal jurisdiction for these statutes is satisfied when "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 one registers to vote simultaneously for federal as well as other offices." (27) Federal jurisdiction is established in "'mixed' elections when federal and nonfederal candidates are running simultaneously." (28) Even when there is no federal candidate on the ballot, federal jurisdiction can be obtained provided "additional facts" are identified. (29)

      3. Prosecutorial Initiatives

         On October 1, 2002, then-Attorney General John Ashcroft instituted the "Ballot Access and Voting Integrity Initiative," a Department-wide effort intended to "increase the Department's efforts and effectiveness in addressing election crimes and voting rights violations." (30) Pursuant to this Initiative, "election crimes are [considered] a high law enforcement priority of the Department." (31)

         Since 1970, the Justice Department has held an Election Day Program "for those elections in which the federal interest is greatest"--during elections in November of each even-numbered year. (32) This Program "calls upon the Department's 93 United States Attorneys to designate one or more senior Assistant United States Attorneys (AUSAs) to serve a two-year term as District Election Officer (DEO) for his or her district." (33) Each District's United States Attorney and District Election Officer coordinate the Department's Ballot Initiative and Election Day Program procedures. (34)

      4. Covered Statutes

         Part B of this Section discusses statutes used to prevent and punish violations made against voters. Part C discusses statutes used to prevent and punish violations made by voters.

   2. Voter Intimidation Statutes

      Voter intimidation is an attempt to "deter or influence voting activity through threats to deprive voters of [a benefit or personal safety]." (35) Voter intimidation is "an assault against both the individual and society, warranting prompt and effective redress by the criminal justice system." (36) Evidence of this type of offense is not easy to obtain, as voter intimidation is "likely to be both subtle and [executed] without witnesses." (37) Evidence that is obtained in successful prosecutions implicates threats, duress, economic coercion, or any other "aggravating factor that tends to improperly induce conduct on the part of the victim." (38) The main federal criminal statutes that apply to voter intimidation address deprivation of voting rights; (39) impairment of federally protected activities; (40) intimidation of voters; (41) intimidating in voting and registering; (42) and stationing of troops at polls. (43) A discussion of these statutes follows.

      1. Conspiracy Against Rights

         Section 241 of Title 18 of the U.S. Code prohibits two or more persons from conspiring to "injure, oppress, threaten, or intimidate any person ... in the free exercise or enjoyment of any right ... secured to him by the Constitution or laws of the United States." (44) The right to vote is included within [section] 241's ambit. (45)

         a. Background

         This statute was enacted as part of the Enforcement Acts (46) passed after the end of the Civil War. Originally, [section] 241 was intended to "address efforts to deprive the newly emancipated slaves of the basic rights of citizenship, such as the right to vote." (47) Now, however, "it has been interpreted to include any effort to derogate any right that flows from the Constitution or from federal law." (48)

         b. Scope

         Section 241 has been used to "prosecute intimidation in connection with political activities." (49) Moreover, [section] 241 "reaches conduct affecting the integrity of the federal election process as a whole, and does not require fraudulent...