The United States Constitution enacts penal laws to preserve the purity of election process. The Federal Election Campaign Act of 1971 regulates the conduct of election campaigns in order to protect the integrity of the political process and to ensure effective political debate. The provisions of this Act supersede any provision of state law dealing with election to Federal office. 2 USCS § 453 provides that notwithstanding any other provision of this Act, a state or local committee of a political party may, subject to state law, use funds that are not subject to the prohibitions, limitations, and reporting requirements of the Act exclusively for the purchase or construction of an office building for such state or local committee.
For the purpose of carrying out uniform and nondiscriminatory election technology and administration requirements, the Attorney General shall bring a civil action against any state or jurisdiction in an appropriate United States District Court. A person should have acted knowingly in order to violate an election law. However, a person not falling within the descriptive terms of a statute describing penal offenses should be excluded.
All provisions of election laws are mandatory. The penal provisions of election laws are sometimes expressly made applicable to primary elections. However, irregularities which are not caused due to fraud and which do not interfere with a full and expression of the voter’s choice should not effect a disenfranchisement of the voters.
Some statutes provide that electioneering may not be done within a given distance of the polling place. However, it shall be considered unconstitutional if an electioneering statute infringes on First Amendment rights. State statutes which prescribe solicitation of votes on Election Day in support of or in opposition to any proposition being voted on cannot be applied to a newspaper’s editorial comment on the issue submitted to voters, because it would violate the constitutional guarantee of freedom of the press.
Any person voting more than once shall be held criminally liable for illegal voting. A person voting without possessing proper qualifications to vote and willfully voting is guilty of illegal voting. A statute proscribing applying for and casting fraudulent absentee ballots in the names of voters without the voters’ knowledge and consent does not require that the information be given without the voter’s permission. Further, statutes do not allow proxy voting and therefore a voter cannot legally authorize or direct another to vote in place of him/her.
Statutes render election officers criminally liable for violations or omissions of their duties under election laws. Election officers may be criminally liable for receiving votes of persons unqualified to vote, willfully rejecting qualified electors’ votes, altering or stealing ballots or other necessary documents, stuffing the ballot box, falsifying the election returns, and committing fraud. A mere mistake without a willful neglect of the duty does not impose criminal liability on election officers.
Election bribery is a criminal offense. The following is an example of a state statute describing election bribery:
Any person, who offers, gives, lends or promises to give or lend, or attempts to procure anything of value or any office or employment or any privilege or immunity to, or for, any elector, or to or for any other person, in order to induce any elector to:
- Refrain from going to the polls.
- Vote or refrain from voting.
- Vote or refrain from voting for or against a particular person.
- Vote or refrain from voting for or against a particular referendum; or on account of any elector having done any of the above.
Pursuant to 42 USCS § 1973i, whoever knowingly or willfully pays or offers to pay or accepts payment either for registration to vote or for voting will be fined not more than $10,000 or imprisoned not more than five years, or both. However, this is applicable only to 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.
A bribe need not take the form of money; however, it may include items of pecuniary value given in exchange for a vote. While a candidate is free to withdraw his or her candidacy and support another, a candidate may not offer to do so in return for money or other valuable consideration. The provision of the constitution forbidding bribery of electors does not apply to the mere provision of food and drink at any fundraising events.
Statutes require political advertisements to identify the person or organization responsible for their appearance. However, such statutes withstand First Amendment attack because they promote the legitimate aim of honesty and fairness in election campaigns. Statutes shall govern the preparation and distribution of publicity or voter pamphlets prior to an election.
To determine whether statements in a voters’ pamphlet are false or misleading, courts consider whether the challenged statement is subject to verifiability, as distinct from typical hyperbole and opinionated comments common to political debate; an outright falsehood or a statement that is objectively untrue may be stricken. Some other statutes prohibit the publication of false campaign advertising. The fact as to whether the evidence in the record supports a finding of actual malice is a question of law. A statement will only violate a prohibition against false campaign statements if the person making the statement knows that the statement is false. However, a statement of opinion would not be a false statement.
2 USCS § 441h provides that no person who is a candidate for Federal office or an employee or agent of such a candidate shall fraudulently misrepresent him/herself or any committee or organization under his or her control as speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof; or willfully and knowingly participate in or conspire to participate in any plan, scheme, or design to violate this provision.
The Federal Election Campaign Act also provides that no person shall fraudulently misrepresent the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations or willfully and knowingly participate in or conspire to participate in any plan, scheme, or design to do so.
Pursuant to 18 USCS § 594, whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined or imprisoned not more than one year, or both.
The statute prosecutes individuals who conspire to commit any offense against the United States, or to defraud the United States or any agency thereof in order to violate election laws. Pursuant to 18 USCS § 241, two or more persons are prohibited from conspiring to injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the United States, or because of his or her having so exercised the same.
42 USCS § 1985 provides that an action for damages where two or more persons have conspired to:
- deprive any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws;
- prevent or hinder the constituted authorities of any state or territory from giving or securing to all persons within such state or territory the equal protection of the laws; or
- prevent by force, intimidation, or threat any citizen who is lawfully entitled to vote from giving his or her support or advocacy in a legal manner toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a member of Congress, or to injure any citizen in person or property on account of such support or advocacy.
In any case of conspiracy as set forth above, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his or her person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
42 USCS § 1974 provides that every officer of election shall retain and preserve, for a period of 22 months from the date of any general, special, or primary election of which candidates for the office of President, Vice President, presidential elector, Member of the Senate, Member of the House of Representatives, or Resident Commissioner from the Commonwealth of Puerto Rico are voted for, all records and papers which come into his or her possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election, except that, when required by law, such records and papers may be delivered to another officer of election and except that, if a state or the Commonwealth of Puerto Rico designates a custodian to retain and preserve these records and papers at a specified place, then such records and papers may be deposited with such custodian, and the duty to retain and preserve any record or paper so deposited shall devolve upon such custodian. Any officer of election or custodian who willfully fails to comply with these requirements will be fined not more that $ 1,000 and/or imprisoned not more than one year.
The Hatch Act places restrictions on political activities by federal employees. Subject to certain exceptions, federal employees may take an active part in political management or political campaigns. A federal employee may not knowingly solicit, accept, or receive political contributions and also may not run for the nomination or as a candidate for election to a partisan political office.
Most states have statutes regulating the political activities of public employees. Such statutes are designed in order to separate the daily work activities of public employees from the process of electing the public officials who direct them. However, the state statutes shall not be upheld if they are unconstitutionally vague.
The solicitation and making of political contributions is heavily regulated under federal law. It shall be a violation of federal law:
- to knowingly cause or attempt to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or party by denying or depriving, or threatening to deny or deprive, that person of any employment, position, or work for any agency or entity of the Federal Government or state or local government, or any compensation or benefit of such employment, position, or work, where such employment, position, or work is made possible in whole or in part by an Act of Congress.
- to knowingly cause or attempt to cause any person to make a contribution for the benefit of any candidate or party by denying or depriving, or threatening to deny or deprive, that person of any payment or benefit of a federal state, or local program, where such payment or benefit is made possible in whole or in part by an Act of Congress.
- for certain specified candidates, office holders, officers and federal employees to knowingly solicit any contribution, as defined by statute, from any other such officer, employee, or person.
- for certain specified federal officers or employees to make any contribution to any other such officer or employee, or to certain specified federal office holders, if the person receiving such contribution is the employer or employing authority of the person making the contribution.
- to solicit or receive a contribution for political purposes from any person knowing that that person is entitled to or is receiving compensation, employment, or other benefits provided for or made possible by an Act of Congress appropriating funds for work relief or relief purposes, or to supply, for political purposes, the names of people receiving such compensation, employment, or other benefits.
- for an officer or employee of the United States, as defined by statute, to discharge, promote, degrade, or in any manner change the official rank or compensation of any other officer or employee, or to promise or threaten to do so, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose.
- to solicit or receive a donation of money or other thing of value in connection with a federal, state, or local election from a person who is located in a room or building occupied in the discharge of official duties by an officer or employee of the United States.
The Federal Election Campaign Act imposes upon the treasurers of political committees the duty to file reports of receipts and disbursements. The Act specifies the contents of such reports. Persons who violate these reporting requirements are subject to criminal penalties under the Act.