On the day before Election Day last week, a federal prosecutor in San Diego issued a public statement warning against such promotions. U.S. Attorney Laura Duffy’s press release came in response to “media reports” that local businesses would be offering “discounts on food and beverages to individuals who show ‘I voted’ stickers on Election Day.”
“The public is reminded,” it stated, “that federal law prohibits expenditures to influence voting, including offers to make an expenditure to any person to vote or withhold his or her vote.” Therefore, “businesses should not offer free or discounted food, drink or services in exchange for voting.”
What makes this especially troubling for regular citizens like you and me is that the laws in question apply not just to businesses, but to customers as well. Both statutes target those who receive payments or expenditures as well as those who offer them. If prosecutors are correct about their interpretation of the law, this would mean that there are literally hundreds of thousands of people who commit crimes every Election Day.
It is possible, then, that the prosecutors are wrong. After all, just because those who enforce a law take a position about the law does not mean they are correct. That’s for courts to decide. And, there are good arguments that at least some of these promotions should be considered legal even under existing law. The Justice Department’s “Federal Prosecution of Election Offenses” states that the law is aimed at payments that are intended to induce voting. The law does not prohibit, then, “offering or giving things having pecuniary value, such as a ride to the polls or time off from work, to help individuals who have already made up their minds to vote to do so.”
But, given the public position some prosecutors have taken about the promotions, participating in them is not without risk. So, how can businesses be safe? One common approach is to offer an Election Day discount to all customers — regardless of whether they voted. This is one way to celebrate the day without risking prosecution.
Meanwhile, stow this column away until the next election comes around.
C. Simon Davidson is a partner with the law firm McGuireWoods. Submit questions to firstname.lastname@example.org. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.