National Security and Election Law: Investigation and Prosecution of Election Fraud.

AuthorGirod, Robert J.


Election fraud is not a phenomenon of the 2020 election year, just as pandemics are not a phenomenon of COVID-19 virus. Election fraud has been around as long as elections have been conducted.

Federal interest in the integrity of elections was first manifested immediately after the Civil War. Between 1868 and 1870, Congress passed the Enforcement Acts, which served as the basis for federal activism in prosecuting corruption of election violations and offenses until most of them were repealed in the 1890s. (See In re Coy, 127 U.S. 731 (1888); Ex parte Yarborough, 110 U.S. 651 (1884); Ex parte Siebold, 100 U.S. 371 (1880)).

Many of the Enforcement Acts 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. In Coy, the Supreme Court held 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. The decision in Coy is still valid and current law. (United States v. Slone, 411 F.3d 643, 647 (6th Cir. 2005); United States v. Mason, 673 F.2d 737, 739 (4th Cir. 1982); United States v. Malmay, 671 F.2d 869, 874-75 (5th Cir. 1982)).

When John F. Kennedy won the presidency in 1960, Earl Mazo, a biographer of Richard Nixon and former political correspondent for the New York Herald Tribune, smelled fraud. In a 2000 Washington Post interview he said, "There's no question in my mind that [the election] was stolen. It was stolen like mad. It was stolen in Chicago and in Texas." Based upon a reporter's tip, Mazo went to Chicago, obtained lists of voters in precincts that appeared questionable and started checking their addresses. "There was a cemetery where the names on the tombstones were registered and voted," he said. "I remember a house. It was completely gutted. There was nobody there. But there were 56 votes for Kennedy in that house." When he went to Texas, he documented similar Democratic electoral fraud. After publishing four segments of a 12-part series on election fraud, Richard Nixon called and asked Mazo to "stop writing his series because the country couldn't afford a constitutional crisis at the height of the Cold War." Failing to convince Mazo, Nixon called his bosses at the Herald Tribune and asked them to stop running the series. The editors pulled him off the story. (1)

Some journalists and Republican legislators believed that Kennedy benefited from vote fraud from Mayor Richard Daley's powerful Chicago political machine. Mayor Daley's machine was known for "delivering whopping Democratic tallies by fair means and foul." Republicans tried, but failed, to overturn the election results. Some journalists even asserted that mobster Sam Giancana and his Chicago crime syndicate "played a role" in Kennedy's victory. A special prosecutor assigned to the case brought charges against 650 people, but they were acquitted by a judge who was an alleged "Daley crony." However, three Chicago election workers were convicted of voter fraud in 1962 and served short terms in jail. (2)

The Presidential Election of 2000 still instigates aruments among partisans on both sides. This was the election in which we learned of the "hanging chad"--the little cardboard tab which pushed through a punch card to signify the choice of candidate. The closest election in history, Al Gore won the popular vote by more than 500,000, but George W. Bush won the Electoral College by one vote. Gore supporters opine that the U.S. Supreme Court "awarded" the presidency to Bush. More acurately, however, SCOTUS merely ended the recount in Florida, which limited Gore's legal challenge to the election results and led to Gore's second concession. But problems encountered during this election led to several initiatives to ensure that such discrepencies would not reoccur. These initaives included the Help America Vote Act of 2002 (HAVA) (52 USC [section][section] 20901-21145), which requires states to upgrade voting systems. But some of these systems installed in some states led to further allegations of discrepencies. (3)

The 2000 controversy was followed closely by controversy in the Presidential Election of 2004. Republicans George W. Bush and Dick Cheney won reelection, defeating challengers, Democrats John Kerry and John Edwards. Bush carried 31 states in the popular vote and 286 in the Electoral College (16 more than they needed to win). More than 30% of all votes in the 2004 election were cast on Direct Recording Electronic machines, which did not retain paper record votes. The Kerry cmpaign did not challenge the election results, but Green Party candidate David Cobb and Libertarian Party candidate Michael Badnarik called for and received a recount in Ohio. The recount did not alter the results, but in 2007 two election officials in Ohio were convicted and sentenced to 18 months terms for rigging the recount. (4)


Election crimes are either 1) State crimes (the majority of crimes and election violations) or 2) Federal crimes. Because of the voluminous number of State statutes in the 50 States (as well as territories), we will limit this discussion to Federal law. Federal election crimes involve three broad categories:

(1). Voter and Voter Registration Fraud: e.g. illegally casting a vote using the name of a dead person or someone who has moved from the address given.

(2). Campaign Finance Violations: e.g. accepting fund in amounts or from donors not permitted by law.

(3). Civil Rights Violations: e.g. intimidation, coercion, threats, or other tactics intended to suppress the ability to vote.

Again, election law and national security law issues involving these three categories are voluminous, so we will confine this discussion to the first category--Voter and Voter Registration Fraud. (52 U.S.C. [section][section]10307(c) and 20511(2), 52 U.S.C.[section][section]10307(c) and 20511(2), and 18 U.S.C. [section][section]1015(f)). Election fraud usually involves corruption of one of three processes: 1) the obtaining and marking of ballots, 2) the counting and certification of election results, or 3) the registration of voters. Types of ballot, election results, and voter and voter registration fraud include:

* Impersonation fraud at the polls: Voting in the name of other legitimate voters and voters who have died, moved away, or lost their right to vote because they are felons, but remain registered. (52 U.S.C. [section][section]10307(c), 10307(e), and 20511(2))

* False registrations: Voting under fraudulent voter registrations that either use a false name and a real or false address or claim residence in a particular jurisdiction [venue] where the registered voter does not actually live and is not entitled to vote. (52 U.S.C. [section][section]10307(c) and 20511(2))

* Duplicate voting: Registering in multiple locations and voting in the same election in more than one jurisdiction [venue] or state.

* Fraudulent use of absentee ballots: a) Requesting absentee ballots and voting without the knowledge of the actual voter, b) obtaining the absentee ballot from a voter and either filling it in directly and forging the voter's signature, or c) illegally telling the voter who to vote for.

* Buying votes: Paying voters to cast a vote for a particular candidate, either in-person or by absentee ballot.

* Illegal "assistance" at the polls: Forcing or intimidating voters--particularly the elderly, disabled, illiterate, and...

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