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statute. This Understanding requires the Department to refer to the Commission all apparent FECA violations that come to the Department's attention as soon as the matter is closed criminally, or as soon as prosecution has been completed. The Justice Department also may not compromise the Commission's administrative remedies in plea bargains reached with potential criminal defendants. Therefore, United States Attorney personnel should take special care to incorporate a proviso concerning non-waiver of the FEC's authority into plea agreements involving defendants who may have violated the FECA.

For reasons that will be discussed more fully in Chapter Three, the Justice Department does not normally prosecute reporting or organizational FECA offenses. These inherently nonfeasant regulatory infractions are normally not suitable for redress through the federal criminal justice system, and the usual practice is to refer them to the FEC for the imposition of suitable civil or administrative criminal penalties pursuant to 2 U.S.C. 437g(a). Exceptions to this policy are made only when a reporting or organizational offense occurs in the course of a more serious pattern of felonious activity, or involves evidence that the putative defendant acted in conscious disregard of a statutory duty to a substantial degree.

Background

CHAPTER THREE

POLICY AND PROCEDURES

A. ABUSE OF THE FRANCHISE

The recent dimension of election fraud as a national problem, and the development of legal theories through which federal criminal redress may be obtained against those who derogate the integrity of a basic institution of democratic government, have made the prosecution of election fraud cases a priority area of federal law enforcement.

Election irregularities range from simple campaigning too close to the polls on one extreme, to sophisticated criminal enterprises directed at assuring the election of corrupt public officials on the other extreme. Viewed in its entirety, the subject area is far too extensive to be thoroughly addressed through the federal criminal justice system. Moreover, the fact that the Constitution expressly leaves to the States primary responsibility for the conduct of elections raises federalism questions that make federal intervention in all but the most serious of these matters inappropriate. Accordingly, the posture which the federal prosecutor has assumed in this area over the years has been to leave primary responsibility for the actual administration of elections and the rectification of election irregularities to the States. The Federal Government enters this field deferentially, either when federal involvement is necessary to vindicate paramount federal interests, or as prosecutor of last resort to redress longstanding patterns of egregious electoral abuse.

In this regard, the Department of Justice receives and processes literally hundreds of complaints annually involving one form or another of election fraud. The vast majority of these are summarily closed without any investigation. The most common bases for these summary closings are lack of an adequately pressing reason for federal intervention, as well as the absence of any readily ascertainable legal theory through which a federal criminal case might be brought. Determinations concerning the appropriateness and the form of federal intervention in election matters are based first on the placement of a fact pattern within one of four categories of aggravation, and second upon a factoring-in of other relevant considerations.

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 involve a pattern of conduct which has as its object affecting the outcome of federal contests for U.S. Representatives, Senators, or President. Under Section 104 of the 1974 Federal Election Campaign Act (Public Law 93-443), federal laws preempt state laws in all such instances. Thus, when a case falls in this category, federal intervention is virtually mandatory.

Category #2

This category includes all patterns of electoral abuse that occur in "mixed” federal-state elections, which can be shown to have impacted adversely upon the vote count of a federal contest, but which were directed principally at improperly affecting the outcome of state or local contests.

Category #3

This category includes all patterns of electoral abuse that occur in "mixed" federal-state elections, but where the fraud in question cannot be shown to have impacted adversely upon the vote count of 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, it 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 cases in Category #3 (where no actual federal impact can be shown). For all practical purposes, the only federal prosecutive theories presently available to reach Category #4 cases are 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
In Election Abuse Matters

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 to 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.

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 Public Integrity Section prior to their presentment to a grand jury or a court. Along the same lines, grand jury process in these matters should not normally be issued 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.

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 Public Integrity Section. 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 orginals 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 the materials pertain to an election where a federal candidate was 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 elective contest in such a way that the investigation is allowed to become a campaign issue. This customarily requires that most, if not all, investigation of a matter await the conclusion of the election involved.

Except where racially motivated conduct is present, there is no statutory basis for federal lawsuits to halt alleged electoral abuse. The role of the Department of Justice in these matters has been not to interfere with ongoing elections, but rather to investigate and prosecute those who broke the law after the election is over.

Private suits may be brought in federal court concerning election matters under 42 U.S.C. 1983. However, the Justice Department does not intercede in such private matters.

Except insofar as racial discrimination matters are concerned, the Federal Government does not have authority to station Marshals, FBI Agents or other federal personnel at open polling places. Access to the polls is controlled by state laws, which generally do not allow federal agents inside the polls. Moreover, the stationing of Marshals and Special Agents within polling places may violate 18 U.S.C. § 592.

B. PATRONAGE OFFENSES AND PROGRAM ABUSE

The federal laws dealing with politicalization of federal employment, programs, and benefits are likewise a priority area of federal law enforcement. Two recent Supreme Court cases have cast strong criticism on the patronage system, and the recent amendment of two of the laws addressing this sort of abuse has left little doubt of the Congress's desire to see political considerations eliminated from the federal system. See e.g. Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 455 U.S. 507 (1980); Public Law 94-453, amending 18 U.S.C. 600 and 601. In many cases the Hatch Act (5 U.S.C. 1501-1508 and 7324-7327) provides appropriate administrative relief in situations where public employees become indiscreetly engaged in politics. However, in cases of gross abuse involving overt political promises or threats of political retaliation against ministerial public servants, criminal redress is both proper and

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