arrowSection 3.3 - Get Out the Vote

This topic is monitored by Moritz Law Professor Donald B. Tobin

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Unlawful Inducements to Vote: Distinguishing Them from Lawful Activities

Candidates, political campaigns, and interested organizations potentially walk a thin line when soliciting votes for their candidate or cause. In a democratic system, the illegality of paying an individual to vote for a specific candidate or issue is absolutely unquestioned. The idea of bribing an elector for his vote runs counter to the ideal of democracy. Yet, massive amounts of money and time are spent by political groups to ensure that their bases of support arrive at the polls on election day. These votes are likewise being paid for; but it is not the voter that receives the cash in his pocket. Likewise, some states, including Alaska 1  and California 2  even allow their electors to be induced to vote, as long as that inducement is not for an individual candidate or issue. Where then is the difference between legally inducing a voter or block of voters to cast support for a candidate or issue and an illegal bribe to do the same?

Suppose a presidential candidate held a base of support in rural evangelical churches, and sought to maximize voter turnout from those churches on election day. Would it be considered bribery for the candidate's campaign, or even a third party, to pay the church a healthy donation to encourage its own voters to get to the polls? Perhaps a certain level of turnout by the church members would warrant a one hundred thousand dollar donation to the church. What if a candidate or political organization were to offer a contest: the civic organization that could prove that its members had the highest voting turnout was to receive a large donation. In this instance, there is no direct compensation for the vote. Rather, consideration lies in the potential eligibility for the grand prize, the large donation. What if a candidate offered a raffle to individuals in important neighborhoods who could prove that they had voted on election day? If a new video games system was to be given away in a raffle, would the potential to win the raffle be enough to illegally induce a voter to the polls? Is there a bright-line where a financing political group and a civic organization crosses the line from utilizing legal inducement methods to using bribery to secure votes?

The Definition of Bribery in the Context of Voting

The state holds a legitimate interest in preventing a direct payment in exchange for votes. Multiple cases 3  have echoed the interest of the government in protecting a voters' right to abstain from vote, as well as his protection from potential vote dilution that would occur if votes were to be sold on the open market. 4  Codifying the ban on voter bribery, the United States Congress has prohibited the conspiracy to encourage illegal voting and stated that anyone who "pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years, or both." 5  Because of constitutional restrictions on the role of the federal government in elections (considered within the sovereignty of the several States), this punishment is only available in an elections held either solely, or in part for an election to a federal office.

"State legislatures have the power to regulate the manner of conducting elections within constitutional limitations." 6  Therefore, state law governs the conduct of state elections, unless an overriding federal interest justifies the exercise of preemptive congressional power. The state of Ohio also has codified penalties for illegal inducements to vote. Ohio Revised Code §3599.01 states that no person shall "give, lend, offer, procure or promise to give, lend offer, or procure any money, office, position, place or employment, influence or any other valuable consideration to or for a delegate, elector, or other person." 8  Likewise, it is forbidden for a person to "advance, pay, or cause to be paid or procure or offer to procure money or other valuable thing to or for the use of another, with the intent that it or part of thereof shall be used to induce such person to vote or to refrain from voting." These code sections provide state-enforced penalties against illegal inducement to vote and are valid in all elections. Anyone found guilty of Ohio Revised Code§ 3599.01 is guilty of bribery, a felony of the fourth degree and any candidate elected must forfeit the office which he was elected. 9  The penalties for bribery during an election are severe.

Facilitating the Act of Voting Is Not an Illegal Inducement to Vote

The definitions of bribery, as created by the Untied States Congress and the Ohio legislature, seem to be unambiguous. Not only is a direct payment for a vote prohibited, but any other "valuable thing, to or for the use of another." But what is a exactly is a "valuable thing to or for the use of another?" Campaigns and interested organizations run "Get Out the Vote Drives," voter-mobilization efforts aimed at getting a portion of the voting populace which either doesn't have the impetus or the ability, to get out to the polls on the day of the election. Would a ride to the polls for an elderly group of voters be considered "valuable consideration?" Does a political party that stamps absentee ballot request forms, in an effort to facilitate their return, run afoul of election law designed to prevent illegal inducement to vote? No, for the following reasons, although the statutory language does not explain why.

Even though a candidate, political party or organization might furnish a "thing of value," such as a ride to the polls or a pre-stamped absentee ballot, the group is not necessarily committing bribery. At its simplest, these voters are not receiving consideration for their appearance at the polls. Rather, they are receiving assistance in order to carry out a constitutionally protected right. Facilitating voting cannot be illegal inducement, as there is no inducement at issue. Rather, "there must be something beyond what is involved in the act of voting, i.e., an advantage that has independent value to the voter." 10 

"In order to induce a person to vote, one must promise or provide something beyond which is involved in the act of voting; there must be an advantage which has independent value to the voter. Otherwise it could not induce the decision to vote." 11  In Oregon Republican Party v. State of Oregon, the mailing of voter registration packets, including self-addressed stamped envelopes was ruled to be mere vote facilitating rather than a form of illegal inducement. The court stated that had the envelopes been blank, and the stamps able to be used for another purpose, the ballot packages could possibly have been seen as an illegal inducement. The court then draws the line between facilitating voting and allowing for an employer to give time with pay, or for a third party to reimburse wages and other expenses lost by voting. "Voters in these circumstances would receive unearned money, which has independent value." 12 

Likewise, rides to the polls are considered to be vote facilitating rather than vote inducing. "The concept of payment does not reach things such as rides to the polls…which are given to make it easier for those who have decided to vote to cast their ballots. Such 'facilitation payments' are to be distinguished from gifts made personally to prospective voters for the specific purpose of stimulating or influencing the more fundamental decision to participate in an election." 13  The Court of Appeals of Kentucky in Van Meter v. Burns also commented on the legality of providing rides to the polls. "We therefore see no impropriety whatever in a candidate's providing conveyances for the purpose of getting his friends to the polls. To this end, he may use his own vehicles, or hire them from another, just so the latter's support is not a part of the consideration, or the compensation [for the rentals] is so large that it was paid for the purpose of obtaining his support or influence." 14 

Door Prizes and the Treating of Voters

Treating is an extremely common practice in American electoral politics. Political events and rallies often serve food and give small gifts to those in attendance: pencils, water bottles, pins, bumper stickers. These items are generally not included as things of value, as defined by anti-bribery statutes. "It is generally held that treating by a candidate, as is customarily done in the daily intercourse of men, is not a violation of a corrupt-practices act, or a similar act, prohibiting the influencing of voters by the gift of refreshments." 15  If these gifts remain small enough, they do not qualify as illegal consideration for a vote.

However, this evaluation of treating relies upon the assumption that gifts given to potential voters are negligible. Door prizes are commonly used at rallies in order to increase attendance and spur participation at the events. In Trumble v. Stano, the Ohio Court of Common Pleas addressed the issue of door prizes as illegal inducement.

"The difficulty lies in determining at what point… the door prize cease(s) to be nominal and become(s) something substantial that a voter in effect is being offered as an out-and out inducement in return for a vote? Obviously it is true…you don't say, 'now you only get this if you agree to vote for Joe Blow,' whoever the candidate might be. In that sense there is no direct inducement. Yet it necessarily would be true that if the gifts become so substantial, so expensive, and so out of proportion to the usual concept of a door prize, it would seem to me under such circumstances the door prize might easily overstep the limits and become an illegal inducement. A pad of matches is one thing, but if a candidate handed out gift certificates as door prizes it would easily be tantamount to illegal inducement." 16 

The court made this point in the context of a reporting requirement emphasizing that disclosing the true nature of the door prize would allow the public to evaluate it as inconsequential or not.

Conclusion: There is No Simple Definition of Illegal Inducement

We must remember that each state defines illegal inducement differently. In Ohio, for example, pre-election advertising of a raffle giving away a Playstation Gaming System, in exchange for voting, would most likely leave the promoters of the raffle criminally liable for illegal inducement to vote. The promise, even of the chance to win the game system, would be adequate consideration to qualify as an illegal inducement. However, in a state such as Alaska, the raffle would be legal. Alaskan election statute AS 15.56.030(a)(2), does not "prohibit payment to induce persons to vote who would not otherwise do so, so long as they are not induced to vote in a particular manner." 17  Because state law is controlling is local elections, this question of illegal inducement is very specific to local law and custom.

At the federal level, 42 U.S.C. § 1973(i)(c) applies to any "General, special or primary elections held solely or in part for the purpose of selecting or electing any candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, Delegate from the District of Columbia, Guam, or the Virgin Islands, or Resident Commissioner of the Commonwealth of Puerto Rico." An election in which any of these candidates serves on the ballot is subject to the definition of illegal inducement at 42 U.S.C. 1973(i)(c) and punishment by the Federal Election Commission.

In a federal election, it would be unwise for a candidate, political party, or non-profit organization to promise rewards or admission to a raffle in order to motivate a church or social organization. For example, again consider a gift offered to a church leader by an non-profit corporation [501(c)(3), 501(c)(4), or 527]. Even if the congregation had no knowledge of the gift, the influence of the church leader on the congregation could constitute acceptance of the illegal inducement. Both the corporation and the receiver of the gift, the leader of the congregation, could be criminally liable for the illegal inducement. The church could also face the possibility of losing its status as 501(c)(3) tax-exempt organization, because an agent engaged in issue or candidate specific politics. 18  The case for illegal inducement would be further strengthened if the congregation knew of the payment by the corporation. These types of activity likely fall under the federal definition of illegal inducement and leave the perpetrating individual or organization subject to fines, criminal penalties, or a possible forfeiture of the outcome of the election.

Notes

1. The 1994 election saw three different programs that offered potentially valuable consideration to Alaskan voters. Among these were private airfare discounts, raffles by the Anchorage Chamber of Commerce for various prizes to participants, and free rides all day on the Anchorage People mover system on the day after the election, each for showing a ballot stub. See Dansereau v. Ulmer, 903 P.2d 555 (1995).

2. "California, for example, allows voters to receive incentives for voting, so long as the incentives are not offered to induce a voter not to vote, or to vote, or to refrain from voting for a particular candidate or ballot measure, and so long as no federal candidates are on the ballot." Richard L. Hasen, Vote Buying, 88 Cal. L. Rev. 1323, 1355 (2000) (citing Cal. Elec. Code. § 18522(a)(1996)).

3. U.S. v. Bowman, 636 F.2d 1003 (5th Cir. 1981); U.S. v. Malmay, 671 F.2d 869 (5th Cir. 1982); U.S. v. Mason, 673 F.2d 737 (4th Cir. 1982); U.S. v. Garcia, 719 F.2d 99 (5th Cir. 1983).

4. FEDERAL ELECTION COMMISSION, ELECTION CASE LAW '97, 122 (1997)

5. 42 U.S.C. §1973i (c). 18 U.S.C. § 597 is very similar and also applicable. This section reads: "Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against a candidate; and Whoever solicits, accepts, or receives any such expenditure in consideration of his vote or withholding of his vote — Shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined not more than $10,000 or imprisoned not more than two years, or both." This statute is of note, in that it refers to potential violators not as individuals, but as a more inclusive "whoever." This allows for criminal prosecution of political corporations or non-profit community or civic organizations for illegal vote inducement, and allows for a broader enforcement of the law beyond violations by a candidate or his supporters. Also noteworthy, the statute punishes regardless of intent, but introduces a harsher punishment for illegal inducement when done with that intent.

6. 26 Am. Jur. 2D Elections § 317 (1996).

7. O.R.C. § 3599.01(A)(1)

8. O.R.C. § 3599.01(A)(3)

9. O.R.C. § 3599.01(B)

10. FEDERAL ELECTION COMMISSION, ELECTION CASE LAW '97, 122 (1997)

11. Oregon Rep. Party v. State, 78 Or.App. 601, 604-05 (Or.App. 1986)

12. Ibid at 605

13. Craig C. Desanto, Federal Prosecution of Election Offenses 18 (5th ed. 1988)

14. Van Meter V. Burns, 195 S.W. 470, 473 (1917)

15. 26 Am Jur 2d Elections § 380 (1996)

16. Trumble v. Stano, 8 Ohio Misc. 69,73, 216 N.E.2d 407, 409 (1965)

17. Dansereau v. Ulmer, 903 P.2d 555, 566 (1995).

18. See Moritz E-Book on Election Law, 501(c)(3) organizations.