situations, the prosecutor should also be able to demonstrate that the course of fraudulent conduct at issue was functionally sufficient to expose the integrity of the federal race to potential danger or question. See e.g. In re Coy, 127 U.S. 731 (1888); United States v. Carmichael 685 F.2d 903 (4th Cir. 1982). In this regard, isolated instances involving nothing more than one voter impersonating another in order to allow him to vote for a nonfederal candidate may be inadequate to establish federal jurisdiction even under a law that is as broadly cast as Section 1973i(c). See Blitz v. United States, 153 U.S. 308 (1894).

It is the policy of the Justice Department to avoid using Section 1973i(c) to prosecute isolated and uncoordinated instances of illegal registration and/or fraudulent voting. As a rule, cases prosecuted under the false registration clause of this statute involve coordinated patterns of illegal registration and fraudulent voting, and defendants who have been responsible for inducing multiple fraudulent voting transactions. Prosecution of uncoordinated acts of fraudulent registration has been considered only where such incidents represent examples of widespread systemic abuse, which jeopardizes the integrity of the voting process in a particular geographic area.

C. COMMERCIALIZATION OF THE VOTE

Section 1973i(c) prohibits “vote buying" in the broadest terms possible. The statutory text covers any "payment", or "offer of payment" that is made to a would-be voter "for voting," as well as payments that are made to induce unregistered individuals to get onto the electoral rolls.

This aspect of Section 1973i(c) is directed at eliminating commercial considerations from the voting process. United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981); United States v. Malmay, 671 F.2d 869 (5th Cir. 1982); United States v. Garcia, 719 F.2d 99 (5th Cir. 1983); United States v. Sayre, 522 F.Supp. 923 (W.D. Mo. 1981); United States v. Simms, 588 F.Supp. 1179 (W.D. La. 1979). The statute rests on the premise that potential voters have a legitimate option to abstain from electoral participation; that those who choose to participate have a right to be protected from the saturation of the voting process with ballots that have been artificially stimulated through offers or gifts of things of value; and that the selection of the nation's leaders should not degenerate into a spending contest, with the victor being the candidate who can pay the most voters. United States v. Bowman, supra. See also United States v. Blanton, 77 F.Supp. 812, 816 (E.D. Mo. 1948).

With these considerations in mind, Section 1973i(c) has been applied to any offer or gift which is made to the personal benefit of a would-be voter for the purpose of stimulating participation in the voting process. The statute applies to offers or gifts of money and liquor, to chances to win prizes given out in a lottery-type format, and to offers of welfare benefits such as food stamps. The only limiting characteristic with respect to the statutory concept of “payment" is that the medium of exchange must have had some ascertainable pecuniary value. United States v. Garcia, 719 F.2d 99 (5th Cir. 1983). Thus, intangible values, ideological ideals, and campaign promises made by or on behalf

of candidates are not the basis for vote-buying cases under Section 1973i(c). In addition, the concept of "payment" does not reach things such as rides to the polls or time off from work which are given to make it easier for those who have decided to vote to cast their ballots. Such "facilitation payments" are to be distinguished from gifts made personally to prospective voters for the specific purpose of stimulating or influencing the more fundamental decision to participate in an election. See United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972). Section 1973i(c) does not require that an offer or payment have been made with a specific motive or intent to influence a federal contest. Indeed, this statute does not even require that the payment be shown to have been made for the purpose of influencing any particular contest. For example, United States v. Bowman, supra, involved a defendant who was convicted under this statute for paying voters to simply persuade them to go to the polls to vote in a mixed federal/state election. In United States v. Garcia, supra, the defendant had given food stamps to voters to influence them to vote for candidates running for County Judge and County Commissioner during a Texas primary where there was only a minor federal contest on the ballot, which was of no interest to the defendants at all. United States v. Thompson, 615 F.2d 329 (5th Cir. 1980); United States v. Mason, supra; United States v. Carmichael, supra; and United States v. Sayre, supra, all involved defendants who had paid voters to cast ballots for candidates running for sheriff. In United States v. Simms, supra, the motive of the defendant was to influence votes for a state judicial post. In United States v. Malmay, supra, the defendant's motive was to influence votes for a member of the school board. See also United States v. Blanton, 77 F.Supp. 812 (E.D. Mo. 1948). All of these cases were considered sufficient under Section 1973i(c), since vote buying is by definition a pernicious election practice that exposes all of the contests occurring at the same time to potential corruption. As long as it can fairly be said that given a pattern of vote-buying exposed the federal contest to the opportunity or potential for abuse or question, an offense under Section 1973i(c) is present even though it cannot be shown that the threat to the federal contest actually materialized. See generally, United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981), and United States v. Carmichael, 685 F.2d 903 (4th Cir. 1981). As with the false registration aspect of Section 1973i(c), the Criminal Division has a policy against prosecuting isolated payments under this statute, as well as a policy against prosecuting voters for selling their votes. The customary commercial voting case focuses upon those who seek to stimulate electoral participation by offering or giving things of value to would-be voters, and do so to a degree sufficient to expose the normal operation of the electoral system to risk. Isolated instances of uncoordinated vote-buying are ordinarily referred to local authorities for disposition under state law.

D. CONSPIRACY TO ENCOURAGE ILLEGAL VOTING

Section 19731(c) specifically criminalizes conspiracies to encourage illegal voting. There have to date been no prosecutions brought under this clause of the statute.

The concept of “illegal voting" is not defined. Since the Federal Constitu

tion specifically entrusts the States with the authority to establish the time, place,

and manner of holding elections, most standards, rules, and criteria governing eligibility to vote derive from state and local laws. Almost all the States have statutes requiring voters to be United States citizens, and laws disfranchising people who have been convicted of certain crimes, who are mentally incompetent, or who possess other attributes warranting restriction of civil rights. The illegal voting clause of Section 1973i(c) has potential application to those who undertake to register or vote people in conscious derogation of such state laws. The statute's text requires that the voter(s) involved have been part of the conspiracy charged. This means that cases brought under this clause should include proof that the voter(s) affected were actively aware that they were not eligible to vote, and that they were registering and/or voting "illegally." However, the way in which this clause is phrased contemplates that only the person encouraging an ineligible voter to register or vote be charged. The "illegal voting" clause does not, in the Criminal Division's opinion, criminalize the conduct of the illegal voter himself.

The conspiracy provision contained in Section 1973i(c) applies only to the statute's "illegal voting" clause. It is the Criminal Division's position that conspiracies arising under the other clauses of Section 1973i(c) (i.e. those involving vote-buying or false registration information) should be charged under the general conspiracy statute, 18 U.S.C. 371.

42 U.S.C. 1973i(e). Voting more than once

Section 1973i(e) was part of the 1975 Amendments to the Voting Rights Act of 1965. This statute makes it unlawful to vote more than once in connection with any general, special, or primary election in which a federal candidate is on the ballot. Violations are felonies punishable by fines up to $10,000 and/or imprisonment for up to five years.

Like 42 U.S.C. 1973i(c), this statute finds its constitutional roots as a necessary and proper congressional enactment directed at assuring that corrupt electoral practices are kept physically away from elections where federal candidates may be affected thereby. It is not necessary to prove under Section 1973i(e) that the multiple votes in question actually affected a federal contest. See e.g. United States v. Odom, 736 F.2d 104 (4th Cir. 1984); United States v. Carmichael, 685 F.2d 903 (4th Cir. 1982); United States v. Mason, 673 F.2d 737 (4th Cir. 1982); United States v. Malmay, 671 F.2d 869 (5th Cir. 1982); United States v. Sayre, 522 F.Supp. 973 (W.D. Mo. 1981); United States v. Lewis, 514 F.Supp. 169 (M.D. Pa. 1981).

Section 19731(3) is a particularly useful prosecutive vehicle to address schemes to stuff ballot boxes, or to cast fraudulent absentee ballots. United States v. Odom, supra. However, the concept of "voting more than once" is not necessarily restricted to situations where members of a criminal enterprise actually mark more than one ballot. It has been said that, like 42 U.S.C. 1973i(c), Section

1973i(e) is a broad statute, which should be accorded an "extraordinary scope and sweep," United States v. Lewis, supra; United States v. Cianciulli, 482 F.Supp. 585 (E.D. Pa. 1979). As such, it has potential use in situations involving intimidation of voters, or where it can otherwise fairly be said that a defendant purposely sought to subvert the free exercise of electoral will by other voters, and thereby multiply the value of his own franchise beyond the one vote accorded to him under our electoral system.

It is the Department's policy not to use this statute to prosecute isolated instances of multiple voting reflecting little, if any, potential adverse federal impact. See e.g. Blitz v. United States, 153 U.S. 308 (1894). Rather, cases brought under Section 1973i(e) are generally confined to situations where there is an organized effort to cast multiple votes in a way that involves a systematic perversion of the elective process. Isolated multiple-voting transactions are normally deferred to local authorities for action under appropriate state law.

18 U.S.C. 1341. Mail fraud

18 U.S.C. 1341 prohibits using the United States mails to execute or further schemes to defraud. Violations are punishable by imprisonment for up to five years, and/or by fines of up to $1,000. Each mailing in the furtherance of a fraudulent scheme may serve as the basis for separate violation of the mail fraud statute. Pereira v. United States, 347 U.S. 1 (1954); Durland v. United States, 161 U.S. 306 (1896).

This flexible criminal statute is extremely useful in the prosecution of intentional abuses of the electoral process which employ the United States mails, and which involve some indicia of deceit, trickery, or corrupt exploitation of a fiduciary trust.

It is well settled that the concept of "scheme or artifice to defraud” as used in the mail fraud law is to be accorded to broad interpretation. It embraces any sort of conduct which employs deceit, trickery, misrepresentation, material omission, or breach of the fiduciary duties of loyalty or trust. United States v. Frankel, 721 F.2d 917 (3d Cir. 1983); United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979); United States v. Pintar, 630 F.2d 1270 (8th Cir. 1980); United States v. Boffa, 688 F.2d 919 (3d Cir. 1982), cert. denied, 103 S.Ct. 1212, and cases discussed therein. The "fraudulent" character of a given scheme is measured by nontechnical standards, and is not necessarily restricted by common law concepts of false pretenses. The law puts its imprimatur on socially accepted moral standards, and condemns conduct which fails to match the "reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general life of members of society." United States v. Curry, 681 F.2d 406 (5th Cir. 1982); United States v. Pearlstein, 576 F.2d 531 (3d Cir. 1978); Blachly v. United States, 380 F.2d 665, 671 (5th Cir. 1967); Gregory v. United States, 253 F.2d 104, 109 (5th Cir. 1958). It is equally settled that the mail fraud statute is not directed solely at schemes that have as their objectives the attainment of pecuniary gain. Schemes to interfere corruptly with the normal functioning of governmental processes, thereby depriving a body politic of the fiduciary loyalty

that is owed by public servants to those they serve, are within the ambit of the mail fraud statute. United States v. Mandel, supra; United States v. Caldwell, 544 F.2d 591 (4th Cir. 1976); United States v. Bush, 522 F.2d 641 (7th Cir. 1973); United States v. Isaacs, 493 F.2d 1124 (3d Cir. 1973); United States v. McNeive, 536 F.2d 1245 (8th Cir. 1978); United States v. Classic, 35 F.Supp. 457 (E.D. La. 1940).

Along these same lines, schemes to deprive an electoral body of its political right to fair and impartially conducted elections, free from dilution from the intentional casting and tabulation of false, fictitious or spurious ballots, have been held to fall within the mail fraud statute. United States v. Odom, 736 F.2d 104 (4th Cir. 1984); United States v. Clapps, 632 F.2d 1148 (3d Cir. 1984); United States v. States, 488 F.22d 761 (8th Cir. 1973), cert. denied, 417 U.S. 909 (1974); United States v. Lewis, 514 F.Supp. 169 (M.D. Pa. 1981). See also dicta in United States v. Curry, 681 F.2d 406 (5th Cir. 1982); and United States v. Murr, 681 F.2d 246 (4th Cir. 1982).2

The outer parameters of what the courts will accept as an actionable vote fraud "scheme" have yet to be determined. However, any activity which has as its object the illegal manipulation of the process by which ballots are cast and tabulated is an appropriate subject for consideration as a mail fraud case. Two recent appellate decisions have affirmed convictions of defendants who consciously sought to take advantage of the mental infirmities of nursing and rest home patients, where the voters involved were not given an opportunity to participate actively in marking the ballots which the defendants cast in their names. United States v. Clapps, supra; United States v. Odom, supra. Both of these decisions contain good analyses of the factual indicia present in a legally sufficient vote fraud scheme. In United States v. Castle, unreported (6th Cir. 1982), the use of the mail fraud statute to prosecute a scheme to buy absentee votes was approved. See also, United States v. Schafer, 726 F.2d 155 (4th Cir. 1984). At the very least, a criminally actionable mail fraud voting scheme should involve proof that the electoral judgment of the voters involved was purposefully derogated, exploited, or ignored; or that the defendants sought to cast ballots which they knew were illegal under local law. See United States v. Odom, supra; United States v. Lewis, 514 F.Supp. 169 (M.D. Pa 1981). Moreover, some indicia of misrepresentation or concealment should be present and charged as part of the scheme to satisfy whatever vestiges of common law "fraud” are left in the statutory concept of "scheme." Along similar lines, in deference to the small judicial minority which remains reticent to extend the mail fraud statute to schemes which do not have either pecuniary or tangible objects,3 it may be advisable to plead the object of a vote fraud scheme in terms of tangible things (i.e. obtaining ballots), or in terms of obtaining the value of the office at which the scheme is directed (i.e. the salary it pays and/or the power it confers).

2In two recent unreported decisions, the Fifth and Sixth Circuits have also specifically adopted and approved the use of the mail fraud law to address schemes to cast illegal absentee ballots. United States v. McNeely, 660 F.2d 496, (5th Cir. 1981); United States v. Castle, No. 82-5011, decided August 12, 1982 (6th Cir.).

See e.g. concurring opinion in United States v. Curry, supra.