States v. Odom, 736 F.2d 104 (4th Cir. 1984-conscious exploitation of the mentally infirm), and United States v. Clapps, 732 F.2d 1148 (3d Cir. 1984-ballots cast without the knowledge or participation of the voters involved). On the other hand, the Criminal Division has long held the view that campaign rhetoric and tactics, as well as ethically questionable activities that focus on the campaigning rather than on the balloting process itself, are usually not properly prosecuted under federal "fraud" statutes. This policy is partially rooted in legal questions that are present in such matters. These are discussed infra at pp. 22 and 23. The policy is also based on the perceived inappropriateness of interjecting federal felony prosecutions into activities that can be attributed in one way or another to the give-and-take of partisan campaigning. Campaign rhetoric and alleged "dirty tricks" are prosecutable, if at all, under two provisions of the Federal Election Campaign Act (2 U.S.C. 441d and 441h) which specifically address this subject, or under 18 U.S.C. 599. The federal prosecutor should not, however, consider such matters as potentially actionable under federal "vote fraud” laws.

18 U.S.C. 241. Conspiracy against rights of citizens

Section 241 was originally enacted as part of the post-Civil War Reconstruction legislation. This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any citizen in the exercise of a right or privilege secured by the Constitution or laws of the United States. Violations are felonies punishable by fines up to $10,000 and/or imprisonment up to ten years, or for any term of years or for life, if death results.

The Supreme Court has long recognized that the right to vote in a primary or general election for the federal offices of Member of Congress and/or President is among the rights secured by Art. I, Sec. 2 and Sec. 4 of the Federal Constitution, which as such is protected by Section 241. Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 299 (1941). Intentional disruptions of fair elections which impact, directly or indirectly, on such federal contests violate the Federal Constitution, and thus this statute.

Section 241 has been held to embrace conspiracies to stuff a ballot box with forged ballots, United States v. Saylor, 322 U.S. 385 (1944); to impersonate qualified voters, Crolich v. United States, 196 F.2d 879 (5th Cir. 1952), cert. denied, 344 U.S. 830; to alter legal ballots, United States v. Powell, 81 F.Supp. 288 (E.D. Mo. 1948); to fail to count votes and to alter votes counted, United States v. Ryan, 99 F.2d 864 (8th Cir. 1938), cert. denied, 306 U.S. 635 (1939); Walker v. United States, 93 F.2d 383 (8th Cir. 1937), cert. denied, 303 U.S. 644 (1938); to prevent the official count of ballots in primary elections, United States v. Classic, supra; to illegally register voters and cast absentee ballots in their names, United States v. Weston, 417 F.2d 181 (4th Cir. 1969), cert. denied, 406 U.S. 917 (1971); United States v. Morado, 454 F.2d 167 (5th Cir.), cert. denied, 406 U.S. 917 (1972); Fields v. United States, 228 F.2d 544 (4th Cir. 1955); and to injure, threaten, or intimidate a voter in the exercise of his right to vote, Wilkins v. United States, 376 F.2d 552 (5th Cir. 1967). It has

been held that Section 241 reaches vote fraud even when the fraud does not affect the actual outcome of the election, Anderson v. United States, 417 U.S. 211 (1974); United States v. Morado, 454 F.2d 167 (5th Cir. 1972), cert. denied, 406 U.S. 916 (1972); and that the vote fraud conspiracy need not be successful to violate this statute, United States v. Bradberry,, 517 F.2d. 498 (7th Cir. 1975). The Courts have also held that this statute does not require proof of an overt act, Williams v. United States, 179 F.2d 644 (5th Cir. 1950), aff'd on other grounds, 341 U.S. 70 (1951); United States v. Morado, supra.

Section 241 reaches conduct affecting the integrity of the federal election process as a whole, and does not require fraudulent action with respect to any particular voter. United States v. Nathan, 238 F.2d 401 (7th Cir.), cert. denied, 353 U.S. 910 (1957). The "victim" of such an offense is society as a whole, since fraudulent voting practices fundamentally derogate the process under which our society's leaders are selected, legitimized, and held accountable for their actions.

The question that most frequently arises concerning the use of Section 241 in election fraud prosecutions involves its application to frauds directed at local candidates that cannot be shown to have impacted at all on federal contests. The problem stems from the fact that Section 241 prohibits only conspiracies to deprive people of rights actually flowing directly from the Federal Constitution. While there is little question that the right to vote for President and Members of Congress falls within this category, there has been considerable judicial speculation over the extent to which the Federal Constitution directly reaches or protects the right to vote for candidates running for nonfederal offices. Ex parte Siebold, 100 U.S. 371 (1880); In re Coy, 127 U.S. 731 (1888); Blitz v. United States, 153 U.S. 308 (1894); Reynolds v. Sims, 377 U.S. 533 (1965); Oregon v. Mitchell, 400 U.S. 112 (1970); Anderson v. United States, 417 U.S. 211 (1974). See also Duncan v. Poythress, 657 F.2d 691 (11th Cir. 1981). With the exception of United States v. Morado, 454 F.2d 167 (5th Cir. 1972), every vote fraud case reported under Section 241 either entailed a scheme directed specifically at corrupting the outcome of a federal contest, or at least involved proof that a federal contest was actually adversely affected by the fraud in question.

Reynolds v. Sims, supra, contains dicta casting the parameters of the federally protected right to vote in extremely broad terms. See also Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978), and Duncan v. Poythress, supra. However, in Anderson v. United States, supra, the Supreme Court was given an opportunity to address directly the reach of the federally secured franchise to nonfederal contests, and the Court refused to do so. Consequently, the use of 18 U.S.C. 241 in the area of election fraud should normally be confined to situations where the conduct in question not only took place during an election where federal candidates were being voted upon, but also where there is proof that a federal elective contest was at least indirectly affected by the fraud.

The main exception to this general rule is where a pattern of vote fraud affecting only local elections is perpetrated through the necessary participation of state agents acting under color of law. The most common example of this type of

case is where a group of individuals conspires to stuff ballot boxes through utilization of the access to voting machinery provided by state law to election officials charged with the safekeeping of the poll in question. In this regard, it is well settled that 18 U.S.C. 241 covers rights secured by all of the substantive provisions of the Federal Constitution, including those secured by the Equal Protection Clause. United States v. Guest, 383 U.S. 745, 753 (1966); United States v. Price, 383 U.S. 737 (1966). Although the United States Constitution may not directly confer a right to vote in state elections, it is clear that when a state adopts an electoral system for filling a public office, the Equal Protection Clause confers upon all qualified voters the substantive right to participate in the electoral process equally with other qualified voters. Harris v. McRae, 488 U.S. 297, 332 and n. 25 (1980); Reynolds v. Sims, 377 U.S. 533 (1965); Gray v. Sanders, 372 U.S. 368 (1963); Baker v. Carr, 369 U.S. 186 (1962). Thus, where the value of the electoral franchise for any sort of candidate is diluted through the corrupt exploitation of state action, an offense cognizable under 18 U.S.C. 241 is present.

This theory of prosecution has been embraced by the Fourth Circuit in two cases arising out of a scheme to stuff ballot boxes in West Virginia through corrupt exploitation of poll officials. United States v. Anderson, 481 F.2d 685 (4th Cir. 1973), aff'd other grounds, 417 U.S. 211 (1974); United States v. Stollings, 501 F.2d 954 (4th Cir. 1974). It has recently been used successfully to address locally directed vote fraud in Chicago.1 Whenever a vote fraud scheme can be shown to depend for its success on the active participation of election officials, prosecution under 18 U.S.C. 241 should be considered.

18 U.S.C. 242. Deprivation of rights under color of law

Section 242 was also originally enacted as a post-Civil War Reconstruction statute. Under this statute, it is unlawful for anyonè acting under color of law, statute, ordinance, regulation, or custom to willfully deprive a person of any right, privilege, or immunity secured or protected by the Constitution or laws of the United States. Violations are misdemeanors punishable by fines up to $1,000 and/or imprisonment up to one year, or for any term of years or life, if death results.

Prosecutions under Section 242 need not demonstrate the existence of a conspiracy. However, the defendant must have acted illegally under color of law. This element does not require that the accused be a de jure officer of a governmental agency. It is sufficient that an accused have jointly acted with state agents in committing the offense, United States v. Price, 383 U.S. 787 (1966); or that his or her actions were made possible by the fact that they were clothed with the authority of state law. United States v. Classic, 313 U.S. 299 (1941); United States v. Williams, 341 U.S. 97 (1951).

'At the time of this writing, the Seventh Circuit had this issue under advisement in a case involving the prosecution of a Chicago precinct captain and several poll officials under Section 241 for a scheme to stuff over 100 bogus ballots during the 1982 general election. United States v. Olinger, No. 83-3247, argued June 6, 1984.

For most purposes relevant to election frauds, Section 242 can be considered and treated as a substantive offense for conspiracies prosecutable under Section 241. As such, the cases cited in the discussion of Section 241 are equally relevant to this statute.

42 U.S.C. 1973i(c). False Information in, and Payments for, Registering or Voting

Section 1973i(c) was enacted as part of the Voting Rights Act of 1965. This statute makes it unlawful, in an election in which a federal candidate is on the ballot: (1) to knowingly and willfully give false information as to name, address, or period of residence to an election official for the purpose of establishing one's eligibility to vote; (2) to pay, offer to pay, or accept payment for registering to vote, or for voting; or (3) to conspire with another person to vote illegally. Violations are felonies punishable by a fine up to $10,000 and/or imprisonment up to five years. (See also 18 U.S.C. 597.) Because of its broad jurisdictional base, Section 1973i(c) is one of the most useful federal ballot security laws on the books today. It is the statute of preference in prosecuting all matters involving corrupt disruptions of the election process that occur during "mixed elections," i.e. those where federal and nonfederal candidates are being voted upon at the same time.

A. THE BASIS FOR FEDERAL JURISDICTION

Unlike laws such as 18 U.S.C. 241 and 242, 42 U.S.C. 1973i(c) does not implement rights that flow directly from the Federal Constitution. As such, its scope is not tied to the parameters of the "federal right to vote"-whatever that may be. This statute rests on the Necessary and Proper Clause (Art. 1, sec. 8, cl. 18) as a measure to protect federal contests from exposure to the risk or potential of corruption that is present whenever the noxious and destructive elective practices that are described therein take place at the same time as federal balloting. In re Coy, 127 U.S. 731 (1888); Burroughs v. United States, 290 U.S. 534 (1934); Buckley v. Valeo, 424 U.S. 1 (1976); United States v. Carmichael, 685 F.2d 903 (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). See also United States v. Blanton, 77 F.Supp. 812 (E.D. Mo. 1948).

The principal utility of Section 1973i(c) to the federal prosecutor is twofold: First, it eliminates from federal election fraud cases the need to delve into arcane questions concerning the parameters of the "federal right to vote." Second, it eliminates from federal vote fraud cases the need to prove that a given pattern of otherwise patently corrupt conduct had an actual impact on an elective contest protested directly by the "federal right to vote." It is sufficient under Section 1973i(c) that a pattern of corrupt conduct took place during a "mixed" federal/state election where both federal and nonfederal contests were being voted upon simultaneously, and that the functional character of the fraud was such as to expose any of the federal races mentioned in the statute to the risk of poten

tial harm. 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); United States v. Sayre, 522 F.Supp. 973 (W.D. Mo. 1981); United States v. Simms, 508 F.Supp. 1179 (W.D. La. 1979); United States v. Cianciulli, 482 F.Supp. 585 (E.D. Pa. 1979). The broad reach of this statute was fully intended by the Congress that enacted it. Section 1973i(c) was enacted to assure that the integrity of the balloting process would be secured in the setting of the expanded franchise which the 1965 Voting Rights Act sought to achieve. In fact, the original version of what eventually became Section 1973i(c) simply prohibited irregular and corrupt practices during any election without regard to the extent to which the conduct might impact on federal contests. The jurisdictional predicate in the present statute, restricting its scope to mixed federal/state elections where there was a potential risk to federal balloting, was the product of constitutional concerns over the completely unrestricted statute which had been initially proposed during original congressional consideration of the Voting Rights Act. See United States v. Cianciulli, supra, and 1965 U.S. Code Cong. and Admin. News 2478, for a detailed discussion of the legislative history of this statute.

B. FALSE REGISTRATION INFORMATION

The "false information" provision of Section 1973i(c) reaches any person who furnishes materially false data to a voting official to establish eligibility to register or to vote. As the statute presently reads, it is necessary that the false information relate to one of the three specifically listed items: name, address, and/or period of residence in the voting district. False information concerning other possible requisites to voting (such as United States citizenship, felon status, and mental competence) do not necessarily fall within the ambit of this particular clause. Such matters should be prosecuted, if at all, as mail frauds, if jurisdictional mailings are present (as is frequently the case with post card or mail registrations); as consipiracies to effect illegal voting under that clause of §1973i(c); or as citizenship offenses under 18 U.S.C. 911. See discussion on pages 23-24, infra.

In virtually all electoral districts, registration to vote in the United States is "unitary" in the sense that a single registration qualifies an applicant to cast ballots for all contests-local, state and federal. As such, the jurisdictional requirement that the false information at issue have been made to establish eligibility to vote for one or more of the federal officers named in the statute is satisfied automatically in all instances where a false statement is made to get one's name on the registration rolls. United States v. Barker, 514 F.2d 1077 (7th Cir. 1975); United States v. Cianciulli, 482 F.Supp. 585 (E.D. Pa. 1979). On the other hand, where the false data is furnished to poll officials for the purpose of enabling a voter to cast a ballot in a particular election (as, for instance, when one voter attempts to impersonate another voter), it is at least necessary to show specifically that a federal candidate was being voted upon at the time. In such