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election laws. It is headed by a Director and it is staffed by attorneys who possess an expertise in the policy and legal considerations involved in the preparation of criminal cases in this area.

Specifically, it has primary responsibility for the development and implementation of Departmental policy concerning all statutes and theories of prosecution which focus upon the manner in which elections are conducted and financed. It performs the preclearance and oversight functions described at 9 U.S.A.M. 2.133(h) and 2.133(o); it assists United States Attorney and Bureau personnel in the preparation and trial of election-related crimes; and it discharges the liaison functions between the Justice Department and the Federal Election Commission concerning campaign finance and reporting offenses under the Federal Election Campaign Act.

Federal criminal statutes that are assigned to the Election Crimes Branch include 18 U.S.C. 241, 242 and 1341 (as they relate to corruption of the franchise); 18 U.S.C. 245 (as it relates to violence within the polls); 18 U.S.C. 592 through 607 inclusive; 18 U.S.C. 1913; 42 U.S.C. 1973i(c); 42 U.S.C. 1973i(e); and criminal enforcement of the Federal Election Campaign Act, 2 U.S.C. 431 through 455 inclusive.

Preclearance

All indictments, complaints, and grand jury investigations must be authorized by the Election Crimes Branch of the Public Integrity Section. Preliminary investigations may be conducted in these matters without consultation with the Department. However, full field investigations require prior Departmental clearance. See 9 U.S.A.M. 2.133(h) and 2.133(0).

Authorization of grand jury and full field investigations may be obtained telephonically in many, but not necessarily all, instances. The telephone number of the Election Crimes Branch is FTS 724-7112.

In especially complex or sensitive cases, or in instances of United States Attorney recusals, the Public Integrity Section has attorney manpower that is available to assist operationally in the preparation and/or litigation of these cases. Requests for such operational assistance should be directed to the Chief of the Public Integrity Section at FTS 724-6963.

The preclearance requirement is intended to help, not to frustrate or administratively encumber, the development and prosecution of federal election cases. Its purpose is to assure that a nationwide standard of prosecution is maintained in this sensitive law enforcement area, and to minimize the risk that federal law enforcement resources will be wasted on matters that have little or no realistic prospect of developing into prosecutable federal criminal cases. The Public Integrity Section has a great deal of experience in the investigation and prosecution of election offenses, and in assessing the merits of complaints involving this subject. The preclearance requirement has been in existence since 1954, and the Department's extensive experience with this procedure over the years has been a good one.

Background

CHAPTER TWO

DESCRIPTION OF STATUTES

A. ABUSE OF THE FRANCHISE

Federal concern over the integrity of the franchise has had two quite distinct points of focus. One has been to assure Blacks and other racial minorities the right to vote, in the furtherance of which the Federal Government has long taken an extremely activist role. The second has been to secure to the general public elections that are run fairly and impartially, free from dilution resulting from corrupt, irregular, or fraudulent practices. The discussion presented here is concerned exclusively with this second type of election abuse. Matters involving discrimination against racial minorities through the ballot box are not discussed here; they involve entirely different constitutional and federal interests, and they are handled by the Civil Rights Division.

Federal concern over the integrity of the franchise was first manifested immediately after the Civil War. Between 1868 and 1870, at the same time it was legislating to assure the implementation of the Fifteenth Amendment, the Congress passed a number of specific statutes dealing with various types of electoral abuse. These federal election fraud laws were known as the Enforcement Acts, and until the 1890s when most of them were repealed, they served as the basis for a relatively activist federal posture in the investigation and prosecution of corruption of the franchise. See e.g. Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Yarborough, 110 U.S. 651 (1884); In re Coy, 127 U.S. 731 (1888).

Many of the Enforcement Acts had broad jurisdictional predicates, permitting them to be applied to a wide variety of corrupt election practices as long as a federal candidate was on the ballot at the time these practices occurred. In Coy, supra, the Supreme Court held that Congress possessed the authority under the Necessary and Proper Clause to regulate any activity occurring during a mixed federal/state election which exposed the federal election to potential harm, whether that harm materialized or not. Coy is still good law today. See United States v. Garcia, 719 F.2d 99 (5th Cir. 1983); 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. Bowman, 636 F.2d 1003 (5th Cir. 1981).

Reconstruction ended as a matter of national policy in 1878, and with it federal activism in election matters retrenched. Most of the Enforcement Acts had been repealed by 1894, and with their demise the federal system lost most of the statutory tools which had made an activist federal posture in election fraud matters possible. The two provisions of these Acts which survived (present 18 U.S.C. 241 and 242) covered only intentional deprivations of rights guaranteed directly by the United States Constitution. The constitutional philosophy pursued by the courts during this period generally held that the Federal Constitution directly conferred a right to vote only for federal officers (i.e. Members of Congress and President), and that electoral abuse aimed at corrupting nonfederal contests was not properly prosecutable in federal courts under federal statutes which remained on the books after the Enforcement Acts had been repealed. See United States v. Gradwell, 243 U.S. 476 (1917); Guinn v. United States, 238 U.S. 347 (1915). This state of affairs was aggravated by the prevailing view that primary elections were not a constituent part of the official elective process, United States v. Newberry, 256 U.S. 232 (1918); and by cases like United States v. Bathgate, 246 U.S. 220 (1918), which read the entire subject of vote-buying out of federal criminal law, even when it was directed at fraudently affecting the outcome of congressional contests.

In 1941, the Supreme Court reversed United States v. Newberry, supra, and recognized for the first time that primary elections were an integral part of the process by which candidates are elected to office. United States v. Classic, 313 U.S. 299 (1941). The Classic opinion represented a reversal in the judicial attitude with respect to federal intervention in election matters, and it began a new period of federal activism in the field. Federal courts came to recognize that the right to vote in fairly conducted elections is a fundamental feature of United States citizenship, which as such is broadly protected by the federal constitution. See Reynolds v. Sims, 377 U.S. 533 (1965); Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978); Duncan v. Poythress, 657 F.2d 691 (11th Cir. 1981); Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910. Federal prosecutions of election fraud under 18 U.S.C. § 241 and § 242 increased, and these two statutes were accorded an expansive interpretation where locally directed election fraud was concerned. United States v. Anderson, 481 F.2d 685 (4th Cir. 1973), aff'd on other grounds, 417 U.S. 211 (1974); United States v. Stollings, 501 F.2d 954 (4th Cir. 1974); United States v. Morado, 454 F.2d 167 (5th Cir. 1972). New criminal laws were enacted by Congress to combat false registrations, multiple voting, and vote buying which contained broad jurisdictional bases (i.e. 42 U.S.C. 1973i(c) and 1973i(e)). United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981); United States v. Mason, 673 F.2d 737 (4th Cir. 1982). Finally, existing statutes such as the mail fraud law were judicially construed to be applicable to a wide variety of electoral abuse. United States v. Clapps, 632 F.2d 1148 (3d Cir. 1984); United States v. Odom, 736 F.2d 104 (4th Cir. 1984); United States v. States, 488 F.2d 761 (8th Cir. 1973), cert. denied, 417 U.S. 909 (1974); United States v. Lewis, 514 F.Supp. 169 (M.D. Pa. 1981).

The right to vote is one of the most fundamentally important aspects of United States citizenship. Its free exercise through honest elections is perhaps the single aspect of democracy that most distinguishes our system of government from the totalitarian and communist ideologies which we as a people have so strongly opposed for so long. Vigilant and vigorous measures to protect the integrity of the franchise are therefore significant national priorities.

What is "Election Fraud?”

Our constitutional system of government rests on a social contract which has as its core the principle that the governed elect their governors. The mechanism through which this principle is implemented in most instances is the election. The American electoral process functions to determine winners, to confer legitimacy upon them, and to hold them accountable to the public they have been temporarily elected to serve.

Over the past 200 years of our constitutional development, this electoral process has been in a constant state of development and flux. In its modern form, the American franchise incorporates the following salient principles: (1) All adult citizens shall be eligible to vote; (2) all qualified voters shall be equal at the polls; (3) each qualified voter shall have the right to make a personal, informed and independent decision concerning candidate preferences, and the right to expect that other voters will exercise their franchise in the same manner; (4) qualified voters may opt not to participate in an election; (5) voter participation shall not be artificially simulated or influenced by bribery or intimidation; (6) all valid ballots shall be tabulated fairly, with equal value given to each; and (7) invalid ballots shall not be tabulated. See generally Reynolds v. Sims, 377 U.S. 533 (1964); Ex parte Yarborough, 110 U.S. 651 (1884); United States v. Saylor, 322 U.S. 385 (1944); United States v. Bowman, 636 F.2d 1003 (5th Cir. 1981).

Any activity which has as its intended objective the improper interference with any of these principles by which the balloting process is conducted is capable of constituting a criminally actionable offense.

Most election fraud is quite easily recognized. Indeed, several especially noxious methods of defeating the principles stated above have been made the subject of specific criminal statutes. Examples include vote buying, multiple voting, and false registrations. Still other methods of subverting the system, such as ballot-box stuffing, destruction of ballots, falsifying tally reports and intimidating voters, fit easily within concepts of "fraud” that have been heretofore recognized as being criminally actionable under various laws in this area. However, some methods of corrupting the franchise are less obviously actionable. In assessing the criminal potential of such matters, federal prosecutors should bear in mind that the paramount feature of the democratic franchise is the free expression of "electoral will" by each voter participating in an election. Thus, any pattern of conduct which has as its intended effect the improper manipulation of the balloting process for the purpose of defeating or ignoring the "electoral will" of individual voters should be considered potentially actionable. See e.g. United

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