[EL] Mackey prosecution for deceptive statements about permissible means of voting

[Graeme Orr]

Eugene Volokh asks about the width of 18 USC 241 (conspiring 'to injure,
threaten, or intimidate any person ... in the free exercise or enjoyment of
any right or privilege secured to him by the Constitution or laws of the
United States...')

Similarly worded provisions are common in the common law world.  Compare
Crimes Act 1914-2018 (Australia) section 28  and Commonwealth Electoral Act
1918 (Australia) section 327(1).   Their electoral heritage dates back to
at least the 19th century UK concept of a crime of 'undue influence' in the
common law of parliamentary elections. This is briefly explained in this
judgment at paras 34 on:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2005/460.html

As the judge suggests, the musty wording and history leave questions over
whether the offence is constrainable to acts of intimidation etc.   On the
other hand, the 1869 Lichfield decision cited there explicitly included
'any fraudulent contrivance'.
To cure this kind of uncertainty, modern election acts, at least in
Australia, have added a (lesser) offence of 'misleading an elector in the
casting of their vote'.  Which the Courts have read, a la Eugene's
dichotomy, as only covering misleading someone about the mechanics of where
and how to vote.  Not any falsehoods about policy etc.

What is not in doubt is that the original 'undue influence' offence at
common law was directed at private action.

Graeme Orr
Professor, Law
University of Queensland
Australia
g.orr at law.uq.edu.au
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