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Procedures For The 1998 General Elections

U. S. Department of Justice

Washington, D.C. 20530

 

MEMORANDUM
TO:	District Election Officer AUSAs
FROM:	Craig C. Donsanto Director, Election Crimes Branch Public Integrity Section Criminal Division
SUBJECT:	Procedures for the 1998 General Elections

This document will summarize the federal law enforcement response to election crimes that arise during «mixed» elections where federal and nonfederal candidates appear on the same ballot. It will also provide you with legal and policy highlights to assist you in responding to allegations of election crimes arising during the forthcoming 1998 federal general elections.

It is being sent to those who our records show have been appointed «District Election Officers» (DEOs) for the 1998 election cycle. If you received this message and are not your office's DEO, please give this document to the correct person and notify me by return e-mail of that person's name and e-mail address.

Most of you are proud «recidivists» in this noble cause. You folks likely know the routine we follow here by heart, and you'll undoubtedly be pleased to know we will be doing the same thing this year as we did in 1996. For those of you who are new to this, you need to read what follows and the attachments.

Everyone should have at least one copy of the 1995 edition of Federal Prosecution of Election Offenses, which sets out the Department's election crime program in significant and annotated detail. This book has a red cover. If you do not have one, please let me know immediately by return e-mail and I will see one is sent to you by overnight mail. The details of the Department's Election Day Watch Program are set out on pages 87-89, and they will be summarized below.

The Election Day Watch Program

On the day of every federal general election since 1970, the Justice Department has conducted an outreach initiative during the period when the polls are open. Its objective is to make it easy for citizens to lodge complaints of electoral irregularities that occur while the polls are open, and to permit us to direct those complaints to the appropriate place: e.g. the Civil Rights Division, state or local election administrators, state law enforcement, and in some instances federal law enforcement.

This is accomplished by each DEO ensuring that the FBI has at least one duty officer available throughout the polling period, and by issuing pre-election press releases that include the telephone numbers at which citizens may bring election-related complaints directly either to the DEO or to the FBI. In the past, the Attorney General has also issued a press statement announcing this program, roughly a week before Election Day. We anticipate that she will be doing the same thing this year. Shortly thereafter, each United States Attorney follows with a local press release naming the District Election Officer(s) and the telephone numbers at which they and the FBI duty agents can be reached on Election Day. Copies of sample press releases that you may wish to use for this purpose will be sent to you separately.

On Election Day, you and your FBI colleagues should make yourselves available by telephone to take complaints from the public, and (with our help when you need it) direct complainants to the appropriate office possessing authority to act on their grievance. For example: Complaints of election glitches and mismanagement should be directed to local or state election administrators. Complaints involving discrimination in the franchise go to the Civil Rights Division. Those involving possible voter fraud go-either to local prosecutors or to the FBI, depending on whether a potentially actionable federal crime may have taken place. These important issues are discussed in detail in Federal Prosecution of Election Offenses and in the attachments to this message.

The Public Integrity Section will also have attorneys who are experienced in this subject on duty all throughout the day. You are encouraged to call us here with any questions or concerns that you may have. We break Election Day up here into two teams: one does a morning shift from 6:00 am through 2:00 pm EST, and the other does the rest of the day from 2:00 pm through 1:00 am the following morning. The morning team is headed by Ms. Nancy Stewart, and the afternoon-night shift by me. In emergencies, you may contact Ms. Stewart directly at'202-514-1440 and me at 202-514-1421.

You must consult with Public Integrity before initiating any federal investigative measures while the polls are still open. See 9 U.S.A.M. § 85.210 and § 90.020, and the summary presented below. The purpose of this consultation requirement is to ensure that no investigative action is taken while the polls are open that risks chilling lawful voting activity, and to avoid interfering with the primary responsibility that the States possess under the Constitution to administer the election process. Please direct routine calls on election day to the Public Integrity Section's general telephone number: 202-514-1412.

The Civil Rights Division will also have attorneys on duty to handle complaints involving discrimination in the voting process based on race, language, or physical challenge. In the past, they have worked closely with us in this initiative, to ensure that complaints are fairly and completely evaluated, and that those that have merit are handled by the appropriate authority and on a nationally consistent basis. I anticipate that CRD will be sending you their own instructions, either directly -or most likely through me. Stay tuned for that.

Important things to keep in mind

With one exception, consultation with Public Integrity is not required for a request that the FBI conduct preliminary investigations into election fraud or patronage matters. Preliminary investigations are generally confined to rounding out credible complaints to permit evaluation of whether a federal criminal investigation is warranted. They rarely incorporate interviews of individual voters about the exercise of their franchise, unless they appear voluntarily or are complainants. The exception is that no investigation should be conducted in the vicinity of open polls on Election Day without consultation with Public Integrity to avoid interfering with the lawful voting activity, and with the primary responsibility for election administration that has been entrusted to the States' by the United States Constitution.

Consultation with Public Integrity is required before any investigation is conducted in campaign financing matters, and before any investigation beyond a preliminary is conducted in voter fraud and patronage matters. Early consultation in campaign financing matters is necessary because the Federal Election Commission (FEC) has concurrent enforcement jurisdiction with the Department of Justice over all criminal FECA offenses, because FEC has exclusive authority to interpret the Act and to seek remedies for violations of it that lack factual aggravation, and because it is important to ensure that matters that do not fall within the Justice Department's narrow criminal law enforcement responsibility under FECA are directed to the FEC. The differences between criminal and non-criminal FECA violations will be summarized momentarily.

The process by which elections is administered, votes counted, and winners certified are primarily a state activity rather than a federal one. For a potential election fraud matter to be considered for federal rather than state prosecution, three questions must be addressed:

1) Is the underlying activity appropriate for criminal treatment?

2) Is there a particular need for it to be handled federally? and

3) Is there a federal statute under which the conduct in question can be prosecuted?

These issues are discussed in detail in the attachments and the election book.

The federal offense of «vote fraud» focuses on the process by which voters are registered and ballots are obtained, cast and tabulated, and attempts to subvert that process in one way or another. Alleged offenses that involve petition circulation or the campaigning process do not usually provide the basis for prosecutable federal crimes. Also, federal criminal intervention is not appropriate for alleged «frauds» that entail the mere negligent failure of election officials to comply with the procedures of state or local election codes, or which involve isolated acts of wrongdoing that are not part of a larger scheme to corrupt the election process.

There is no authority for United States Marshals, FBI agents, or (except in Illinois) AUSAs to serve as poll watchers. 18 U.S.C. § 592, an old but still valid post-Civil War criminal statute, provides felony penalties for any person who stations «armed men» at polling stations. Special Agents of the FBI and U.S. Marshals are armed while on duty, and thus fall under the sweep of this statute. In addition, access to open polls is strictly governed in most states by state election laws, which except in Illinois do not provide for access to open polls by federal personnel. So, as general rule federal personnel cannot enter open polling places (except of course to vote at their own precincts) or serve as poll watchers.

There is one narrow exception to this general rule, which is the principal reason why we get so many requests for FBI Agents and Marshals to serve as poll watchers. That exception applies to jurisdictions that are still subject «to the Voting Rights Act, and where the Attorney General has certified a need for federal civil rights observers in the polls. The authority for this federal poll watching activity is based on a federal statute (the Voting Rights Act) that is enforced by the Civil Rights Division. It is limited to ensuring that the elective franchise is not deprived on the basis of ethnicity, language minority status, or disability. The people who actually perform this limited civil rights poll watching function are not FBI Agents or Marshals, but instead are clerks drawn by the Office of Personnel Management from the federal civil service.

Voters whose votes were co-opted in election fraud matters are usually viewed by federal prosecutors as the victims, not perpetrators, of federal election frauds. This federal approach can differ from that used by our colleagues at the State or local levels. For example, it is a crime under both federal and State law to sell votes as well as to buy them. Some State prosecutors routinely target those who sell their votes, and disregard those who buy them. The federal approach is the opposite, where the law enforcement goal is to prosecute those who seek to corrupt the election process through activities such as vote buying. Indeed, the existence of a local policy of prosecuting individual voters rather than focusing on the political operatives who corrupt the process can supply the «need» element for federalization.

Interviewing non-complaining voters about the circumstances under which they voted could chill lawful voting activity. That result is to be avoided. Therefore, all interviews of non-complaining voters shortly before or during times when the polls are open should be closely coordinated with Public Integrity.

Since the voting process is at bottom primarily a state-regulated activity, federal authorities should not interfere with it. This means that until the votes have been canvassed and the outcome of all the election contests on the ballot certified by the competent state authority, the documentation generated by the election process must remain in state hands. Also, while this may not be possible in all situations, it is preferable that the predication of federal voter fraud investigations above «preliminaries» await the conclusion of the election and the certification of results. Again, close consultation with Public Integrity is encouraged.

With three minor exceptions,¹ The Federal Election Campaign Act (FECA) applies only to contributions and expenditures aimed at influencing the election of federal - not state - elections. The federal criminal laws that have heretofore been used to address illegal campaign financing schemes include 2 U.S.C. § 437g(d), 18 U.S.C. § 371 and 18 U.S.C. § 1001. These apply only to contributions and expenditures that violate «core» features of that Act, i.e., those where the application of the law to the facts is clear and there are no unresolved legal issues Chat require clarification from the FEC or the Courts. See Federal Prosecution of Election Of tenses, (1995), pp 96-97.²

In addition, 18 U.S.C. § 1346 has been recently used successfully to address illegal federal campaign financing activities.³ United States v. Sun-Diamond Growers. 138 F.3d 961 (D.C. Cir. 1998). This theory arguably has potential application to some schemes to purposefully violate state campaign financing laws. Nonetheless, it is the current Department policy not to reach out to federalize state campaign financing violations except under the most extenuating circumstances. Violations of state campaign financing laws should be pursued, if at all, under corruption theories of prosecution, most of which require at least some proof of a quid pro quo. See McCormick v. United States. 500 U.S. 257 (1991).

Finally, the Eighth Circuit has very recently resolved heretofore-lingering questions about the application of federal statutes to Indian tribal elections. In United States v. Wadena. 152 F.3d 831 (8th Cir. 1998), the Circuit reviewed all of the laws dealing with Indian tribal sovereignty and concluded that none of them precluded the application of federal statutes and legal theories to purely tribal elections. Such elections, however, are local elections rather than federal ones, unless they occur simultaneously with federal balloting. This means that as a general rule, only those theories that permit federalization of nonfederal election frauds apply to Indian tribal elections.

It is interesting, however, that the statutory theory on which the Wadena case rested was deprivation of the federally protected right to vote under 18 U.S.C. § 241, the election at issue was not a federal one, and the proof demonstrated that only that a «private scheme» had occurred (i.e.. it involved only misdeeds by campaign workers, and did not involve official misconduct by poll officers or others acting under color of law such as could trigger federally secured constitutional rights under the 5th or the 14th Amendments). Nevertheless, the Eighth Circuit found that the facts demonstrated a deprivation of the federally secured right to vote in a local election. Therefore, aside from resolving the application of federal criminal law to Indian tribal elections, Wadena may be authority for the constitutional issue left undecided in Anderson v. United States, 417 U.S. 211 (1974) and Oregon v. Mitchell. 400 U.S. 112 (1970): whether there is a federal constitutional right enforceable under 18 U.S.C. § 241 to vote in a nonfederal election free from corrupt «private» (i.e. nongovernmental) action.⁴

Where to get help

The telephone number for the Public Integrity Section is 202-514-1412.

My telephone number is 202-514-1421.

As many of you know all too well, I am usually on the phone and - like you - I can only talk to one person at a time. An alternative way to roust me in an emergency is to freeze my computer screen by sending me e-mail messages, which you can accomplish by mailing them to «CRM01 (DONSANTO)». I am scheduled to be converted to the new JCON system before Election Day arrives, so you will probably be able to locate me on your JCON directories.

Nancy Stewart, who for the past two decades has been my back up on these election matters, can be reached at 202-514-1440 or «CRM01 (STEWART)».

The fax number here at Public Integrity is 202-514-3003.

Attachments

There are four documents associated with this message, which I'll send to you separately - probably tomorrow evening here on the East Coast. They include:

«Votefr.aud.» This is a monograph I prepared recently as a handout to accompany a lecture I give with some frequency to election administrators on election fraud. It defines the components of potentially criminally actionable election fraud with a bit more precision than is done in the book. It also explains the operation of the various «need» factors that usually must be present in one form or another in order to justify the federalization of this sort of criminal activity, in view of the unique authority and responsibility that the States have in the election administration process under Article I, sec. 2, cl. 4 of the Constitution.

«Q&A.» This is another handout I wrote in «Q and A» format that answers the questions concerning federal election crime offenses that I have found most frequently arise.

«Press.AG.» This is a copy of the press statement that the Attorney General issued prior to the November 1996 general election. The statement for the 1998 election has not been prepared as yet. However, I do not anticipate that it will differ significantly from the 1996 one.

Finally, «Press.USA» contains two alternative form press releases for your use after the Attorney General issues her statement.

I am most grateful to have all of you on board for this tour. I promise to try to keep it interesting - - -

Craig C. Donsanto
Director, Election Crimes Branch
Public Integrity Section
October 1, 1998

1 The three exceptions are that under 2 U.S.C. § 441b(a) national banks and federally chartered corporations (like the Red Cross) cannot give to any candidate, and that under 2 U.S.C. § 441e foreign nationals cannot give to any candidate.

2 A11 criminal violations of FECA brought under the Act's criminal misdemeanor provision (2 U.S.C. § 437g(d)) require proof of a specific intent on the part of the offender to violate a substantive provision of the Act, which the offender knew of and purposefully flouted. See e.g.. AFL-CIO y_ FEC. 628 F.2d 97 (D.C. Cir. 1980); National Right to Work Committee v. FEC. 716 F.2d 1401 (D.C. Cir. 1983); United States v. Curran. 20 F.3d 560 (3d Cir. 1994). This strict center element requires that the offender's conduct offend a clearly defined statutory standard. Resolution of ambiguities in the reach of FECA are the exclusive responsibility of the FEC, subject of course to judicial review. E.g., 2 U.S.C. § 437c(b)(l), § 437d(e), § 437f, and § 438(a)(8).
Felony prosecutions involving FECA brought under 18 U.S.C. § 371 or § 1001 require additional proof of center beyond that needed to gain a conviction under 2 U.S.C. § 437g(d). See United States v. Hansen. 772 F.2d 940 (D.C. Cir. 1985)(opinion by Scalia, J.). In the case of Section 371, these include proof that the defendant intended to thwart the lawful mission of a government agency, such as the Federal Election Commission. Curran. United States v. Hopkins. 916 F.2d 207 (5th Cir. 1990). In the case of Section 1001, these include proof that the defendant reasonably foresaw that his/her activities would result in materially false information being conveyed to a government agency. United States v. Gabriel. 125 F.3d 89 (2d Cir. 1997); and -- at least in the Third Circuit -- proof that the defendant specifically sought to conceal a substantive FECA violation from the FEC, Curran.

3 The theory is that corporate officers owe a fiduciary duty of honesty to their corporate employer, its stockholders and its creditors not to expose the corporation to the significant loss of good will and criminal liability that ensues from intentional violation of laws dealing with campaign financing.

4 I consider this as one of the great unresolved issues of federal election law, as recognition of a federal right to vote in all elections would significantly enhance our ability to federalize electoral abuses that take place in local elections - which is where most of this sort of conduct happens. So, please proceed with real caution in interpreting the breadth of the Wadena decision on this particular issue.