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PREFACE

This is the fourth edition of the Justice Department's election law manual. Its purpose is to present a current summary of the criminal laws dealing with the subject of elections. It also contains a statement of the policy and procedural considerations which bear on the administration of federal criminal justice in this complex and important area.

The substance and enforcement of the federal election laws are among the least understood subjects with which federal prosecutors are required to deal. It is the hope of those of us who have prepared these materials that they will shed light on the subject, and provide useful guidance to the federal prosecutor in discharging the Justice Department's law enforcement responsibilities in election matters.

The contents of this booklet are intended exclusively to serve as a reference tool for personnel employed by the Offices, Boards and Divisions of the Justice Department, United States Attorney Offices and the Federal Bureau of Investigation. Nothing contained herein is intended to confer substantive or procedural rights on the public generally, or upon those whose activities may fall within the ambit of these laws in particular. Moreover, the discussion which follows represents only the views and policy of the Criminal Division on the date of its preparation. It is subject to change without notice.

In the two years since the 1982 national elections, substantial and significant developments have taken place concerning the prosecution of election fraud cases in the federal courts. Previously unresolved questions concerning the extent to which abuse of the franchise aimed at local and state elections may be prosecuted under federal law have been answered. The potential for a federal presence in this area of law enforcement has increased. Investigative techniques have been developed and implemented which facilitate the detection and proof of vote fraud cases. At the same time, new problem areas concerning the integrity of the franchise have been identified, especially in the area of voting by noncitizens and exploitation of the franchise of mentally infirm and the socially dependent voters. It is presently accurate to represent that the federal prosecutor possesses the statutory and investigative tools through which federal jurisdiction can be asserted over most abuses of the franchise. It is our expectation that these prosecutive theories will be further refined and improved over the ensuing election cycle, so as to enable the Justice Department to efficiently and effectively fulfill its responsibility to ensure a meaningful electoral franchise for all United States citizens.

The assistance of Nancy Stewart, James Cole, and Margaret Koch of the Public Integrity Section, and of Special Agents Ernie Locker and Charles Neal of the Federal Bureau of Investigation, in the preparation of these materials is recognized and sincerely appreciated.

Craig C. Donsanto, Director

Election Crimes Branch

Public Integrity Section

CHAPTER ONE

INTRODUCTION

Overview

Primary responsibility for establishing qualifications for the franchise and conducting elections is left by the United States Constitution to the States. The Federal Government enters this field selectively, for the purpose of protecting the integrity of significant federal interests and programs, and to assure that voting rights secured by the Federal Constitution are not willfully abridged. Federal statutes dealing with the conduct of elections, election irregularities and patronage are scattered throughout the United States Code. These criminal laws fall into four groupings:

(1) criminal statutes which relate to corruption of the franchise

(18 U.S.C. 241, 242, 245, 592-594, 596-599 and 1341; 42 U.S.C. 1973i(c); 42 U.S.C. 1973i(e));

(2) criminal statutes which relate to the misuse of federal property, programs, or employment for political purposes (18 U.S.C. 595, 598, and 600-607);

(3) campaign financing statutes, with both criminal and civil penalties (2 U.S.C. 437g, 439a, 441a, 441b, 441c, 441d, 441e, 441f, 441g, 441h, and 441i); and

(4) regulatory and disclosure statutes for federal candidates and

political committees (2 U.S.C. 431-439).

The substance of these election laws is discussed in Chapter Two of this Manual. The policy and procedural considerations governing their handling by the Justice Department are contained in Chapter Three. For the purpose of this discussion, the election laws will be treated in the groupings described above, since the Department's enforcement approach differs with respect to each category. Chapter Four contains a brief summary of the procedures employed by the Justice Department on the date of the national general elections. The Appendix contains a compilation of pertinent provisions of the United States Code dealing with elections, vote fraud and political campaigns.

Enforcement of the statutes dealing with vote fraud and patronage is within the exclusive jurisdiction of the Department of Justice, and in this respect violations of these statutes are treated the same as any other federal crime.

On the other hand, the campaign financing statutes are subject to the concurrent jurisdiction of the Department of Justice and the Federal Election Commission. The Department exercises exclusive criminal jurisdiction over prosecution of violations that are aggravated with respect to the degree of criminal intent involved, and the quantitative sum of money involved. The Commission has since 1976 exercised exclusive jurisdiction over the imposition of a wide range of noncriminal remedies which were created at that time to address less aggravated infractions of the often intricate statutory requirements that govern the subject of campaign finance.

The Federal Election Campaign Act requirements dealing with reporting, recordkeeping, and the organization of political committees are similarly subject to the concurrent jurisdiction of the Department of Justice and the Federal Election Commission. However, in practice this sort of violation rarely rises to the level of criminal culpability that lends itself to redress through the criminal justice system. The Department's policy has been to defer such matters to the Commission for administrative enforcement, except in truly exceptional situations where criminal redress is required.

Many of the federal election laws have undergone profound and frequent changes since 1972, when the interests which these laws address first became matters of paramount public concern. New legal theories have been, and are continuing to be, developed and tested in an effort to assure that criminal redress is available against those who intentionally undermine the integrity of the elective franchise, which is a basic institution of democratic government. Recent innovations in the investigation of this case type have facilitated the detection of vote fraud, and have expedited the task of prosecuting those who commit election crimes.

The federal role in these matters is an important one. However, the assertion of federal jurisdiction in this area routinely involves resort to statutes that were enacted 50 to 100 years ago. It also often entails resolution of novel questions of federalism, respect for the FEC's statutory noncriminal enforcement role, and the difficult job of enforcing federal criminal laws in the setting of partisan political contests. Close coordination between United States Attorneys and the Departmental personnel who have an expertise in this field is essential to assure consistency in enforcement policy and objectives, and to avoid the appearance of undesirable interference by the federal prosecutor in political electoral processes.

Election Crimes Branch

Election matters are administered on a Department-wide basis by the Election Crimes Branch, a component of the Public Integrity Section.

The Election Crimes Branch was created in 1980, for the purpose of discharging the Criminal Division's responsibilities over the administration of the federal

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