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 These federal election fraud laws were known as the Enforcement Acts, and until the 1890s when most of them were repealed, they served as the basis for a relatively activist federal posture in the investigation and prosecution of corruption of the franchise.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

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