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CHAPTER ONE
OVERVIEW
This book was written to help federal prosecutors and
investigators discharge the responsibility of the United States
Department of Justice in attacking corruption of the election process
with all available statutes and theories of prosecution. It addresses
how the Department handles all federal election offenses, other than
those involving civil rights, which are enforced by the Department’s
Civil Rights Division. This Overview summarizes the Department’s
policies, as well as keylegal and investigative considerations,related to
the investigation and prosecution of election offenses.
INTRODUCTION
In the United States, as in other democratic societies, it is
through the ballot box that the will of the people is translated into
government that serves rather than oppresses. It is through elections
that the government is held accountable to the people and political
conflicts are channeled into peaceful resolutions. And it is through
elections that power is attained and transferred.
Our constitutional system of representative government only
works when the worth of honest ballots is not diluted by invalid
ballots procured by corruption. As the Supreme Court stated in a case
upholding federal convictions for ballot box stuffing: “Every voter in
a federal . . . election, . . . whether he votes for a candidate with little
chance of winning or for one with little chance of losing, has a right
under the Constitution to have his vote fairly counted, without its being
distorted by fraudulently cast votes.” Anderson v. United States, 417
U.S. 211, 227 (1974). When the election process is corrupted,
democracy is jeopardized. Accordingly, the effective prosecution
of corruption of the election process is a significant federal law
enforcement priority.
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Although corrupt government may exist without election
crime, when election crime exists, public corruption of some form is
also usually present. This is so because virtually all election crime is
driven by a motive to control governmental power for some corrupt
purpose. Election crime cases therefore often provide effective tools
for attacking other forms of public corruption. The task of the federal
prosecutor and investigator is not only to vindicate the fundamental
principle of fair elections by convicting those who corrupt them but
also to find the motive behind the election fraud and, when possible, to
prosecute those involved in the underlying corruption.
There are several reasons why election crime prosecutions
may present an easier means of obtaining convictions than do other
forms of public corruption:
• Election crimes usually occur largely in public.
• Election crimes often involve many players. For example,
successful voter bribery schemes require numerous voters;
ballot box stuffing requires controlling all the election
officials in a polling location; and illegal political
contributions generally involve numerous conduits to
disguise the transaction.
• Election crimes tend to leave paper trails, either in state
voting documentation or in public reports filed by federal
campaigns.
TYPES OF ELECTION CRIMES
1. Election Fraud
Election fraud usually involves corruption of one of three
processes: the obtaining and marking of ballots, the counting and
certification of election results, or the registration of voters. Election
fraud is generally not common when one party or one faction of a
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party dominates the political landscape. Rather, the conditions most
conducive to election fraud are close factional competition within an
electoral jurisdiction for an elected position that matters. Thus, in a
jurisdiction when one party is dominant, election fraud may
nevertheless occur during the primary season, as various party
factions vie for power.
Most election fraud aims at ensuring that important elected
positions are occupied by “friendly” candidates. It occurs most often
when the financial stakes involved in who controls public offices are
great – as is often the case when patronage positions are a major
source of employment, or when illicit activities are being conducted
that require protection from official scrutiny. As noted, election
crimes will typically coincide with other types of corruption.
2. Patronage Crimes
Patronage is a term used to describe the doctrine of “to the
victor go the spoils.” The Supreme Court has held that the firing,
based on partisan considerations, of public employees who occupy
non-confidential and non-policymaking positions violates the First
Amendment. Moreover, an aggressive and pervasive patronage
system can provide a fertile breeding ground for other forms of
corruption. It is therefore important to root out aggravated patronage
abuses wherever they occur.
Patronage crimes are most prevalent when one political faction
or partydominatesthe political landscape but is also required to defend
its position of power against a credible opposition. Patronage crimes
are also commoninjurisdictionswhereotherforms of public corruption
are prevalent and tolerated by the body politic.
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3. Campaign Financing Crimes
The federal campaign financing laws are embodied within
the Federal Election Campaign Act of 1971 (FECA), 52 U.S.C.
§§ 30101–30146, as amended (most significantly in 1974, 1976,
1979, and 2002).
As amended, FECA applies to virtually all financial
transactions that impact upon, directly or indirectly, the election
of candidates for federal office, that is, candidates for President
or Vice President or for the United States Senate or House of
Representatives. FECA reaches a wide range of communications
aimed at influencing the public with respect to issues that are
closelyidentified with federal candidates, referred to in the law
as “electioneering communications.”
FECA contains its own criminal sanctions, which
provide that, to be a crime, a FECA violation must have been
committed knowingly and willfully and, except for campaign
misrepresentations and certain coerced contributions, must have
involved at least $2,000 in a calendar year. 52 U.S.C. § 30109(d).
FECA crimes aggregating $25,000 or more are five-year felonies,
and those that involve illegal conduit contributions and
aggregate over $10,000 are two-year felonies. 5 2 U.S.C.
§ 30109(d)(1)(A), (D). Moreover, all criminal violations of FECA
are subject to U.S. Sentencing Guideline § 2C1.8, that the
United States Sentencing Commission promulgated in response to
a specific Congressional directive.
FECA violations that either: (1) do not present knowing
and willful violations, or (2) involve sums below the statutory
minimums for criminal prosecution, are handled non-criminally
by the Federal Election Commission (FEC) under the statute’s
civil enforcement provisions. 52 U.S.C. § 30109(a).
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Finally, FECA violations that result in false information
being provided to the FEC may present violations of 18 U.S.C.
§ 371 (conspiracy to disrupt and impede a federal agency), 18
U.S.C. § 1001 (false statements within the jurisdiction of a federal
agency), 18 U.S.C. § 1505 (obstruction of agency proceedings), or
18 U.S.C. § 1519 (creation of false records in relation to or
contemplation of federal matters).
4. Civil Rights Crimes
Schemes to deprive minorities of the right to vote are
federal crimes under the Voting Rights Act of 1965, as amended.
52 U.S.C. § 10308. Discrimination based on a potential voter’s
race, or on ethnic factors or minority language, may also be
redressed under such criminal statutes as 18 U.S.C. §§ 241 and
242. These prosecutions are handled by Criminal Section of the
Civil Rights Division.
In addition to civil rights crimes, federal law provides
non-criminal remedies for any conduct that diminishes an
individual’s voting rights based on racial, ethnic, or language
minority factors. These civil remedies are incorporated within the
Voting Rights Act of 1965, as amended, and other civil rights
laws, and they are enforced by the Voting Section of the Civil
Rights Division.
FEDERAL JURISDICTION
The federal government asserts jurisdiction over an
election offense to ensure that basic rights of United States
citizenship, and a fundamental process of representative
democracy, remain uncorrupted.
Election crime casestend to be long-termprojects focusing
on individuals with different degrees of culpability. The ultimate
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goal is to move up the ladder of culpability to candidates, political
operatives, public officials, and others who attempted to corrupt,
or did corrupt, the public office involved.
Federal jurisdiction over election fraud is easily established
in elections when a federal candidate is on the ballot. The mere
listing of a federal candidate’s name on a ballot is sufficient, under
most of the federal statutes used to prosecute voter fraud, to
establish federal jurisdiction. This generally occurs in what are
called “mixed” elections, when federal and non-federal
candidates are running simultaneously. In such cases, the federal
interest is based on the presence of a federal candidate, whose
election may be tainted, or appear tainted, by the fraud, a potential
effect that Congress has the constitutional authority to regulate
under Article I, Section 2, clause 1; Article I, Section 4, clause 1;
Article II, Section 1, clause 2; and the Seventeenth Amendment.
The absence of a federal candidate from the ballot can
present federal law enforcement with special challenges in
attaining federal jurisdiction over election crime. Those
challenges can sometimes be met, provided the investigation
focuses on identifying additional facts that are needed to invoke
application of the federal criminal laws that potentially apply to
both federal and non-federal elections. These generally include
election frauds that involve the necessary participation of public
officers, notably election officials acting “under color of law,”
voting by non-citizens, fraudulently registering voters, or paying
voters in violation of state law.
Federal jurisdiction over campaign financing offenses
under FECA also derivesfrom Congress’s authority to regulate the
federal election process. While a number of the provisions added
to FECA by the Bipartisan Campaign Reform Act (BCRA)
address financial activities by state and local parties that are
generic in the sense that they simultaneously benefit both federa and non-federal candidates, federal campaign financing law does
not apply to violations of state campaign laws. Most states have
enacted laws regulating and requiring transparency of campaign
financing of candidates seeking state or local office. While
violations of these state statutes are not, by themselves, federal
crimes, they may be evidence of other federal crimes, including
Hobbs Act, Travel Act, mail or wire fraud, or other offenses.
ADVANTAGES OF FEDERAL PROSECUTION
The Constitution confers upon the states primary
authority over the election process. Accordingly, federal law does
not directly address how electionsshould be conducted. State law
historically has regulated such important activities as the
registration of voters, the qualifications for absentee voting, the
type of voting equipment used to tabulate votes, the selection of
election officials, and the procedures and safeguards for counting
ballots.
These factors might suggest that the prosecution of
election crime should be left primarily to local law enforcement.
However, local law enforcement often is not equipped to
prosecute election offenses. Federal law enforcement might be
the only enforcement option available.
Four characteristics of the federal criminal justice
system support the federal prosecution of election crimes despite
the primary role of the states in most facets of election
administration:
• Federal grand juries, the secrecy requirements of
which help protect the testimony of witnesses who
tend to be vulnerable to manipulation and intimidation.
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• Federal trial juries, which are drawn from a broader
geographic area than are most state juries, and thus
lessen the possibility of local bias.
• Resources to handle the labor-intensive investigations
generally required for successful prosecution of
election crime.
• Detachment from local political forces and interests.
