Yes, Vote-Buying Is Illegal. But Why?
(Bloomberg Opinion) -- I’ve never been a fan of litigating election results in court, and the lawsuit filed last month by the loser of the Democratic primary for a Florida seat in the U.S. House of Representatives seems as frivolous as they come. Yet one of its several charges deserves more thought. Not because it’s true — it’s ridiculous on its face — but because it speaks to the nature of democracy.
The allegation from the loser, Dale Holness, is that the winner, Sheila Cherfilus-McCormick, essentially purchased votes by promising legislation that would pay those of moderate income $1,000 per month. His lawsuit calls it “a gimmick designed only to motivate people to vote for her.”
Well, sure. But the gimmick is perfectly legal. The Supreme Court has long held that the First Amendment protects a candidate’s promise that her victory will mean more money in voters’ pockets. What Cherfilus-McCormick has done is what office-seekers do all the time. A public promise of cash payments to a large number of voters isn’t illegal; a private promise of money just to me would be. As the legal scholar Pamela Karlan memorably put it, candidates are allowed to buy votes wholesale but not retail.
Consider that we can freely alienate other constitutional rights. When a lawyer agrees not to disclose the confidences vouchsafed by a client, nobody supposes that the lawyer’s right to free speech is unjustly infringed. Freedom of religion isn’t violated when an hourly worker forgoes weekend worship services in order to earn time-and-a-half or better.
Moreover, although frowned upon pretty much everywhere, vote-buying remains common around the world, even when the secret ballot means that the bargain is difficult to police. The rapid growth of social media has created channels that make electoral transactions easier. And we can’t exclude the U.S., where vote-buying has long been common. Scholars have found that votes are typically purchased not by strangers but by acquaintances or influential community leaders.
Academics have tried to explain why we can sell other rights but not votes: Because our votes affect others, for instance. Or because public officials (and by extension candidates for public office) owe fiduciary duties to voters. Because if votes could be sold, voters would have yet another reason to consider mainly their own self-interest. Because allowing votes to be sold would transfer more political power to the rich.
Although each of these arguments possesses some merit, I suspect that most of the instinctive opposition to vote-selling stems from the near-mystical faith in the ballot box as the heart of democracy, the place where citizens make thoughtfully considered choices. The voter who allows the choice to be influenced by filthy lucre betrays that faith.
In an 1880 speech, the great liberal lawyer Robert Ingersoll put the point this way: “Every voter is in his own right a king; and every voter, poor and rich, wears the purple of authority alike. The man that will sell his vote is the man that abdicates the American throne.” The vote-seller, said Ingersoll, “is not worthy to be an American citizen.”
Temptation was considered endemic. A Connecticut pastor, in an 1898 sermon, urged parishioners not to sell their votes “for a few paltry dollars or a drink of liquor.” To similar effect, a North Carolina newspaper in 1912 issued a stern caution: “Don’t sell your vote for the small sum of two or three dollars. Don’t sell your vote at all, for God hates a man that sells his vote.”
Running against President Franklin D. Roosevelt in 1936, Kansas Governor Alfred M. Landon tried to turn this widespread sentiment to political advantage: “I am dedicated to this proposition that henceforth no American citizen shall ever again be put in a position where he has to sell his vote for bread.”
Pro-Democratic newspapers bristled, interpreting Landon’s words as an open accusation that government officials were conditioning relief on political support. In context, however, the challenger clearly meant that he wanted an America where people didn’t have to rely on the dole. In other words, he thought it wrong to “buy” votes by promising government assistance.
Which brings us back to Florida. As I said, Holness’s accusation of vote-buying is frivolous; Cherfilus-McCormick purchased no votes. Yet the instinct to which his lawsuit appeals, even if absurd in this particular instance, is one that runs deep in American history. True, the image of the rational and disinterested voter may be no more than a fiction, but it’s often by such fictions that democracy is preserved.
At the retail level, those who do sell their votes tend to sell them cheaply. In 2016, a federal court upheld a conviction for election law violations where the defendant was accused of paying between $10 and $20 for a vote. A similar 1991 decision involved a price of $3 to $5.
Some scholars argue that particularly in the U.S. context, what’s being paid for is not votes but turnout.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
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