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.
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.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.