Rick Hasen wrote:

See also this this report in the Washington Post (thanks to Ed Feigenbaum for the pointer).

It is believed that "walking around" money often ends up in the hands of voters, raising a question of direct vote buying. Just about everyone agrees that paying people to vote for or against a particular candidate or ballot measure should be illegal (though all of the reasons offered are open to some criticism). The question of paying for turnout is more difficult. I explore the issue in Vote Buying, 88 California Law Review 1323, 1355-59 (2000) and Pam Karlan looks at the question in Pamela S. Karlan, Not By Money But by Virtue Won? Vote Trafficking and the Voting Rights system, 80 Virginia Law Review 1455 (1994). My article recounts the prevalence of payments to increase turnout in California, particular the Democratic Party's targeting of payments in minority neighborhoods where turnout tends to be strongly Democratic. (Such payments are illegal when there is a federal candidate on the ballot under federal law, but legal under state law otherwise.)

Richard Winger wrote:

From Maryland

Charges against three tied to Ehrlich race thrown out; State law found

unconstitutional; Judge says 1979 statute infringed on free speech

By Walter F. Roche Jr. and David Nitkin
Sun Staff

April 25, 2003
A Prince George's Circuit Court judge declared unconstitutional yesterday

a state law barring the payment of Election Day poll workers, and threw out
criminal charges against three workers tied to Gov. Robert L. Ehrlich Jr.'s
2002 election campaign.

In an eight-page decision issued just six days after a hearing, Judge

Richard H. Sothoron Jr. said the 1979 law improperly infringed on guaranteed
free-speech rights and had been interpreted to give "carte blanche
authority" to restrict Election Day activities.

The judge's order dismisses the criminal charges leveled by a Prince

George's County grand jury against Shirley R. Brookin, 56, head of a
Washington employment agency; Rashida Hogg, 23, of Silver Spring; and Steven
P. Martin, 31, of Capitol Heights. The three could have faced penalties of a
year in jail and fines of up to $25,000 each.

The decision, if unchallenged, would end a nearly 25-year-old Maryland ban

on "walk-around money," the custom of handing out cash to Election Day
workers, a practice critics equated with buying votes.

Noting existing state laws that bar vote-buying and electioneering within

100 yards of polling places, Sothoron said that the law barring walk-around
money "is lacking in constitutionally mandated specificity."

"The reality," Sothoron wrote, "is that [the law] is unlimited in its

geographic scope, thus providing no guidance whatsoever as to how the
conduct is to be controlled on election day in Maryland."

Adopting many of the arguments offered last week by defense lawyers for

the three defendants, Sothoron also noted apparent inconsistencies and
conflicts in the law. For instance, he said, it appeared to him that the ban
applied only to final elections, not primaries.

The law states the payments are barred "on the day of the election, while

the polls are open."

Assistant State Prosecutor Thomas M. McDonough said yesterday that no

decision had been made on whether to appeal the decision. He said his office
would be conferring with state Attorney General J. Joseph Curran Jr. before
making a final decision.

A spokesman for Curran said the attorney general would be happy to consult

with State Prosecutor Stephen Montanarelli on the issue, but offered no
further comment.

McDonough, however, acknowledged that prospects for a successful appeal

were slim, especially in light of recent U.S. Supreme Court decisions that
have struck down similar laws in other states.

Calling the ruling "no big surprise," McDonough said the cases against the

three defendants along with any additional investigation were "dead in the
water" barring an appeal.

"Being branded as a criminal for expressing your First Amendment rights is

clearly wrong. We are obviously pleased that Judge Sothoron moved quickly to
correct this injustice," said Larry Nathans, the lead attorney on the
constitutional challenge.

"I'm too happy to talk. I'm just ecstatic," said Wayne Clark, who

coordinated the Democrats for Ehrlich efforts in Prince George's County and
remained a possible target were the investigation to continue.

"It's a great day for the Ehrlich campaign, but it's an even better day

for democracy in the state of Maryland," Clark added.

Democratic State Party spokesman David Paulson, however, called the ruling

"unfortunate."

"There was a reason the law was put in place in the first place," Paulson

said.

Henry Fawell, a spokesman for the governor, said the judge's decision

validated Ehrlich's campaign practices.

"The governor made clear from the outset of the campaign that illegal or

inappropriate behavior would not be tolerated, and that all campaign
employees must follow the letter and the intent of the law," Fawell said.
"This ruling dispels even the appearance of impropriety."

In the hearing last week, attorneys for the three defendants argued that

the 1979 statute was an improper infringement on free speech. Citing U.S.
Supreme Court rulings on similar laws in other states, they told Sothoron
the 1979 law was too vague and was aimed at problems that no longer exist.

Prosecutors, however, said that the law met constitutional requirements

and was necessary to maintain public confidence in the election process.
They argued that even the appearance of vote-buying must be barred.

The American Civil Liberties Union had joined with the defense in calling

for the law to be declared invalid.

Brookins, the first to be indicted in the case, works with a Washington

employment agency that was paid by Lt. Gov. Michael S. Steele's campaign
committee, while Hogg and Martin were paid by Democrats for Ehrlich.

Brookins was charged with paying workers from a Washington homeless

shelter to hand out Election Day literature. Hogg and Martin were charged
with recruiting high school and college students for the same task.

An investigator from Montanarelli's office, court records show, was an

eyewitness when the homeless workers collected $150 apiece the day after the
November election. The high school and college students, however, never were
paid, though they were promised it.

Advocates for campaign reform were dismayed by the ruling.

"If we don't have this ban, what's to stop us from going back to the dark

days of buying votes and buying elections?" said James Browning, executive
director of Common Cause/Maryland, a government watchdog group.

Acknowledging that campaigns have been in all likelihood paying poll

workers despite the law, Browning said the high-profile case involving a
sitting governor offered a chance to shine a spotlight on the practice.

"This was our chance to stop it this year," he said, "If we got some

enforcement, maybe it would stop."

Like many East Coast cities, Baltimore has a storied tradition of paying

workers to round up votes on Election Day. The practice thrived in the era
of machine politics that stretched deep into the 20th century.

"Walk around money many years ago in Baltimore was tantamount to buying

elections," said former longtime state Sen. Julian L. Lapides, a Baltimore
Democrat known for his reform instincts.

Some say the practice dates to at least 1849. Edgar Allan Poe collapsed on

the streets of Baltimore and died on a voting day, and legend has it that he
was accepting drinks in exchange for votes at one bar after another.

The prohibition on paying workers dates to the late 1970s, and was passed

in the aftermath of the scandal that embroiled former Gov. Marvin Mandel,
now an Ehrlich adviser, who was convicted of using his office for the gain
of friends and campaign donors.

Lapides said he hoped Montanarelli would appeal the decision and that

lawmakers would work to craft an acceptable form of the ban.

"It's a healthy law, and maybe it needs to be tightened up," he said.

"It's an unfortunate decision, and one that sets us backwards rather than
forward."

Copyright (c) 2003, The Baltimore Sun

Link to the article: http://www.sunspot.net/bal-md.elect25apr25.story

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com

 

--
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Professor
Georgetown U. Law Ctr.
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phone 202/662-9098
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