cases. I say they come from the Justice Department information from observers that has not been followed up. One of the most extraordinary stories we uncovered recently was involving Hale County which is one of these counties that is majority black but not black controlled. I won't go through all of the stories about Hale County, but it involved misleading voters as to whether they were part of the city and otherwise preventing black voters from participating in a municipal election in 1984 in which for the first time a black had made it to a runoff in this at-large system in Greensboro. Now, the information we have is that the candidate and one of his assistants met with the FBI, explained the situation-this is after writing to some U.S. attorneys and getting no response-and the answer they got back was really two things: One, the information they had was not specific enough. I do not know how they could have been more specific than, for example, the city put a police car in the entrance to this one particular project to prevent people from coming to the polls. I do not know what else they wanted. Some of this information was printed in the newspaper which these black leaders had provided to the Justice Department. The other thing that they said, that the FBI said, which I found extraordinary, was there were not enough votes involved to affect the outcome of the election. Actually in this case there probably were enough votes to have an impact on the election, but it is plain in Perry County and in Greene County the number of votes involved could not have had any effect on the election. If all those votes had not been cast or even had been cast the other way, there would have been no effect on the election at all. Mr. ISHIMARU. Over the last 4 years the Justice Department has brought three section 2 suits in the State. How many suits have been brought by the private bar? Mr. BURNIM. I can think of about six I have brought myself during that period of time, and I know there are other lawyers in the State, for example, Senator Sanders, who have brought suits. I am familiar with only-well, with two of the suits, in fact, I am familiar with that have been brought in Alabama in the 1980's. One involved Conecah County and involved intimidation in election day problems they had in that county, vote buying and other problems with election officials. It is interesting there were no criminal convictions or investigations in that case that involved white officials. The Pike County case I am familiar with because I originally filed a Pike County case on behalf of private plaintiffs. It was a reapportionment case. There was a one man-one vote violation because the county districts had been malapportioned. The Justice Department with great fanfare about a week after I filed the case filed their own case saying that this also constituted a section 2 violation which was, I think, somewhat irrelevant, and the case never went anywhere. We litigated and prosecuted our private case essentially without the involvement of the Justice Department, so that seems to be two-thirds of the efforts that have been initiated. My reading of the Justice Department's activity in Alabama in the 1980's has been there has been very little. We also-what activity we have has been not very encouraging. There have been num bers of cases where the Justice Department has approved submissions under section 5 where this seemed to be really no reason for doing so and very compelling reasons for not. Senator Sanders mentioned the appointment of the Greene County Race Commissioners. There have also been polling place changes, polling place eliminations, voter reidentification bills that have been precleared. Interestingly, in some of these cases there has been an initial objection and then you get a lot of white public officials going to Washington and meeting with the Civil Rights Division and Assistant Attorney General Reynolds, and then you either have a withdrawal of the objection or in some cases new legislation which is essentially the same. It then becomes pre-cleared. And it has got to the point, as Senator Sanders says, that we just cannot rely on the Justice Department any longer to help us in the battle to secure black voting rights in Alabama. Mr. ISHIMARU. Thank you. Thank you, Mr. Chairman. Mr. KIKO. I have no questions. Mr. EDWARDS. I might suggest more communcation with the subcommittee, Mr. Burnim, because we are very interested in just what you described there. Mr. SWEET. May I make two points clear? Mr. EDWARDS. Mr. Sweet. Mr. SWEET. The question of dismissal of counts came up. I just thought it would be I represent Bobbie Neil Simpson. Before trial she was charged with 31 counts. I thought you might be interested in the fact over half of them were dismissed before trial. Nineteen of the thirty-one counts were dismissed, and we went to trial on twelve. So prior to trial it appeared she had 31 counts of voter fraud and actually went to trial on twelve. We are going to go to retrial very soon. We are talking 3 ballots, 10 counts, where those ballots are charged in more than one way. It was also interesting about Perry County. You heard Mr. Dobynes testify this morning about the ballot that he was asked about. You heard him say he told the Justice Department that he actually mailed that ballot himself. That ballot was one of the charges in the Perry County case. His testimony did not cause that ballot and his candor and the fact he put the ballot in the mail himself did not cause that ballot to not be included in the indictment against the persons in Perry County. Mr. EDWARDS. Very interesting, very significant. Thank you very much. Mr. BURNIM. Thank you. [Whereupon, at 3:15 p.m., the subcommittee adjourned subject to the call of the Chair.] : Categories of Election Fraud Matters The four categories of election fraud matters are distinguished from one another by the degree of actual adverse federal impact that is present in a given fact situation. In descending order of importance, they are as follows: Category #1 This category includes all election fraud matters that reflect a pattern of conduct which has as its object affecting the outcome of federal contests for Congressmen, Senators or President. Under Section 104 of the 1974 Federal Election Campaign Act (Public Law 93-443), federal laws preempt State laws ir. all such instances. Thus, when a case falls in this category, feċeral intervention is virtually mandatory. Category #2 This category includes all patterns cf electoral abuse which occur in the setting of a federal election, which can be shown to have impacted adversely upon the outcome of a federal contest, but which were directed at improperly affecting the outcome of State or local contests. Category #3 This category includes all patterns of electoral abuse which occur in the setting of a federal election, but where the fraud in question cannot be shown to have impacted adversely upon a federal contest. Category #4 This category includes all the remaining situations in which a pattern of electoral abuse occurs during an election where federal candidates were not on the ballot. It is readily apparent that the actual federal interest is much greater in Category #1 matters than it is in Category #2 matters, and that it is greater in Category #2 matters than it is in Category #3 matters. It is also apparent that there is little, if any, federal interest or impact in Category. #4 matters. Concomitantly, the number and severity of federal criminal statutes which address matters in Categories #1 and #2 (where an actual federal impact can be demonstrated) are substantially greater than the prosecutive tools available to reach (137) cases in Category #3 (where no actual federal impact car. De shown). For all practical purposes, the only federal prosecutive theory which is presently available to reach Category #4 cases is mail fraud, and the one-person-one-vote "dilution theory advanced in United States v. Anderson, 481 F.2d 685. (4th Cir. 1973). The category of federal aggravation presented by a given matter is the most important consideration in determining whether federal intervention is appropriate. We intercede in all Category #1 cases. We intercede in Category #4 matters only to redress longstanding patterns of gross electoral abuse where State enforcement is not a viable prospect. Whether we intervene in Category #2 or Category #3 matters depends upon an analysis of other factors which color the degree of actual federal impact present. Other Factors Bearing On Intervention Since most election fraud matters which come to the Department's attention fall into Categories #2 or #3, it has been necessary for the Justice Department to develop a procedure for identifying other relevant factors, and for applying them consistently on a nationwide basis tc the election fraud Complaints that we receive. This analysis involves a four-step process: First, geographic areas are periodically identified where abuses of the franchise have been shown to present a particularly acute systemic problem. These determinations are made on the basis of the incidence of serious complaints, the societal impact flowing from the pattern of abuse, and the capacity of local or State law enforcement to address the problem. The views of the Bureau and of local United States Attorney personnel are solicited in setting priority areas. Second, efforts are made to maximize the flow of complaints concerning election abuses to federal authorities. This is done by encouraging an activist posture on the part of the Bureau and the United States Attorneys during important federal elections, and through encouraging United States Attorney and Bureau personnel to conduct expeditious preliminary investigations in these matters with a view to developing adequately specific information concerning a pattern of conduct. Third, an effort is made to determine whether a pattern of election abuse is functionally related to a pattern of local corruption, or other criminal activity in a given area or instance. - 52 Fourth, the local United States Attorney and Bureau personnel are consulted for input concerning the need for federal intervention, and the availability of United States Attorney personnel to prosecute any completed cases which might result from an investigation. Preclearance of Investigations and Prosecutions Prosecution of election fraud matters is the responsibility of the United States Attorneys, as is the case with most other federal crimes. All complaints, informations and indictments charging election fraud offenses must be approved by the Election Crimes Branch prior to their presentment to a grand jury or a court: Along the same lines, use of grand jury process in these matters should not normally be made without prior clearance, although authorization to use the grand jury in an election investigation will normally be given simultaneously with authorization to investigate a matter as a potential federal crime. The Election Crimes Branch staff is available to assist in the investigation or prosecution of these cases. Seizure of Ballot Materials Federal custody of ballot materials is normally obtained through subpoena. Except in rare cases of extreme urgency, such subpoenas must normally be approved beforehand by the Election Crimes Branch. Subpoenas for election records which are needed to protect their integrity may be authorized telephonically. Extreme care must be taken not to deprive local election officials of materials which State law requires they maintain in order to tally, canvass, recount, and certify election results,' This objective may generally be achieved by accepting copies in lieu of originals until the State's statutory need for physical custody of the election paraphernalia in question is no longer . present. 42 U.S.C. 1974 requires that ballot materials be physically maintained for at least 22 months, if it pertains to an election where federal candidates were voted upon. Timing and Objective of Election Fraud Investigations The normal posture of the Federal Government in election fraud matters is to refrain from intervening in an ongoing 53 |