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Article Excerpt
I. 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.
II. ELECTION FRAUD
A. 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.
B. 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 action with respect to any particular voter." (50) Voter bribery that corrupts the balloting process, however, does not constitute "conduct affecting the integrity of the federal election process as a whole," (51) nor do schemes that "involve poll officers to ensure that the bribed voters mark their ballots as they were paid to do." (52)
Section 241 "prohibits only conspiracies to interfere with rights flowing directly from the Constitution or federal statutes," (53) though the defendant need not actually know that he had been violating a constitutional right. (54) Section 241 does not require the successful completion of the conspiracy, (55) nor does it require proof of an overt act. (56) Section 241, however, does require a showing that the defendant acted with specific intent to interfere with the protected federal right. (57) Section 241 has been used to punish conspiracies to "stuff a ballot box with forged ballots," (58) to "prevent the official count of ballots in primary elections," (59) to destroy "voter registration applications" (60) and ballots," (61) to "illegally register voters and cast absentee ballots in their names," (62) to "injure, threaten, or intimidate a voter in the exercise of his fight to vote," (63) to "impersonate qualified voters," (64) to "fail to count votes and to alter votes counted," (65) and to "alter legal ballots." (66)
Section 241 has been "successfully applied to nonfederal action, provided that state action was a necessary feature of the fraud," as when persons present at the polls "clothe themselves with the appearance of state authority." (67) Recently, [section] 241 was charged in a "scheme to jam the telephone lines of two get-out-the-vote services that were perpetrated to prevent voters from obtaining rides to the polls in the 2002 general elections." (68) While the defendant was acquitted on the [section] 241 charge, (69) the district court held [section] 241 applied to the facts. (70)
i. Public Versus Private Schemes
The use of [section] 241 in election fraud cases generally falls into two types of situations: public and private schemes. (71)
A public scheme requires the "necessary participation of a public official acting under the color of law." (72) A frequent example of this scheme involves an election officer who is accused of "using his office to dilute valid ballots with invalid ballots or to otherwise corrupt an honest vote tally in derogation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment." (73) Another example involves a "notary public who falsely notarized forged voter signatures on absentee ballot materials in an Indian tribal election." (74)
A private scheme "is a pattern of conduct that does not involve the necessary participation of a public official acting under color of law, but that can be shown to have adversely affected the ability of qualified voters to vote in elections in which federal candidates were on the ballot." (75) Examples of private schemes involve "voting fraudulent ballots in mixed elections," (76) and "thwarting get-out-the-vote or ride-to-the-polls activities of political factions or parties through such methods as jamming telephone lines. (77)
One notable difference between public and private schemes relates to the type of election in question. Section 241 reaches public schemes "regardless of the nature of the election, i.e., elections with or without a federal candidate." (78) Section 241 reaches private schemes, however, only if "the objective of the conspiracy was to corrupt a specific federal contest, or when the scheme can be shown to have affected, directly or indirectly, the vote count for a federal candidate." (79)
c. Penalties
Violations of [section] 241 are punishable by fine, imprisonment of not more than ten years, or both. (80) If death results from the violation of [section] 241, such persons may be sentenced to death. (81) Sections 2H1.1 and 2H2.1 of the Unites States Sentencing Guidelines (the "Guidelines") apply to defendants convicted under 18 U.S.C. [section] 241. (82) The base offense level set by section 2H1. (1 is the greater of the offense level of the underlying offense, twelve (if the offense involved two or more participants), ten (if the offense involved the use or threat of force against a person or property) or six (otherwise). (83) If the defendant was a public official or committed the act under color of law, the Guidelines recommend an increase by six levels. (84)
Under section 2H2.1, defendants convicted under 18 U.S.C. [section] 241 are subject to a base offense level of eighteen (if the obstruction involved the use or threat of force against a person or property), twelve (if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means), or six (if the defendant solicited or accepted or agreed to accept anything of value to vote, vote for a particular candidate, refrain from voting, or register to vote; gave false information to establish eligibility to vote; or voted more than once in a federal election). (85)
2. Deprivation of Rights Under Color of Law
Section 242 of Title 18 of the U.S. Code makes it a crime for any person "under color of any law ... [to] willfully [deprive] any person ... of any rights, privileges, or immunity secured or protected by the Constitution or laws of the United States." (86)
Like [section] 241, [section] 242 was also enacted as part of the post-Civil War Enforcement Acts. (87)
a. Scope
A [section] 242 violation must have been done "under color of law"--that is, pursuant to a "public scheme." (88) Thus, the defendant need not be a "de jure officer" or government official, but must jointly act with state agents (89) or be "clothed with the authority of state law." (90) Finally, the existence of a conspiracy need not be established to prove a [section] 242 violation. (91)
As [section] 242 "embodies the substantive offense for a [section] 241 conspiracy ... it therefore can apply to voter intimidation." (92) Section 242 has been used to prosecute "intentionally jamming telephone lines to disrupt a political party's get-out-the-vote or ride-to-the-polls efforts." (93)
b. Penalties
Violations of [section] 242 are punishable by imprisonment of not more than one year, fine, or both. (94) If bodily injury results from the violation of [section] 242, violators shall be sentenced to not more than ten years. (95) If death results from the violation of [section] 242, violators shall be sentenced for any term of years, including for life, or may be sentenced to death. (96)
Sections 2H1.1 and 2H2.1 of the Guidelines apply to defendants convicted under 18 U.S.C. [section] 242. (97) The base offense level set by section 2H1. (1 is the greater of the offense level of the underlying offense, twelve (if the offense involved two or more participants), ten (if the offense involved the use or threat of force against a person or property) or six (otherwise). (98) If the defendant was a public official or committed the act under color of law, the Guidelines recommend a six-level increase. (99)...
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