I am a coffee shop owner with a question about election law, of all things. Last week on Election Day, we had a promotion giving away a free cookie to anyone wearing an “I voted” sticker. That evening, someone made an angry post on our Facebook page claiming that our promotion was illegal. My suspicion is that the person who made the post is just not enamored with our shop’s politics, which we tend to be quite open about. Besides, all we were trying to do with the promotion was celebrate people performing their civic duty. This can’t be illegal. Can it?
Every Election Day, businesses around the country have promotions just like yours. In my own neighborhood, there were offers of free cookies and coffee, as well as discounts on everything from barbecue to clothing to wine. From one perspective, these promotions appear to be exactly what you say: a way to celebrate the patriotism of those who perform their civic duty. What could be wrong with that?
From another perspective, however — that of federal prosecutors — these promotions may be crimes, punishable by up to five years in jail.
In fact, prosecutors say that the promotions may violate not one but two federal statutes that prohibit vote-buying. The first forbids making or offering to make “an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate.” The second forbids paying, offering to pay or accepting “payment either for registration to vote or for voting.”
The Department of Justice, which is charged with enforcing these laws, addresses them in a publication called “Federal Prosecution of Election Offenses,” which states that the laws are aimed at “commercialization of the vote.” “Those who choose to vote,” it says, “have a right not to have the voting process diluted with ballots that have been procured through bribery.” A “bribe” may include “anything having monetary value, including cash, liquor, [and] lottery chances.” Broadly, the law applies to any “pattern of vote buying that exposes a federal election to potential corruption,” even if the corruption threat never materializes.
Some business owners have a hard time seeing how their promotions could possibly expose an election to potential corruption — particularly when the promotions are nonpartisan, rewarding participating in the election, not voting one way or the other. For example, an “I voted” promotion for one national franchise in 2008 stated: “We can’t guarantee that your candidate of preference will win ... but we can guarantee that your right to voice your choice will be rewarded with a patriotic doughnut that will remind you just how tasty freedom really is.”
It is true that nonpartisan promotions seem less likely to be prosecuted than those aimed at rewarding votes for a particular candidate. But prosecutors insist that even nonpartisan promotions can violate the law. One concern is that explicitly nonpartisan promotions might affect election results if offered in areas whose residents historically vote one way or another.
Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.