Elections(redirected from Criminal Aspects)
The processes of voting to decide a public question or to select one person from a designated group to perform certain obligations in a government, corporation, or society.
Elections are commonly understood as the processes of voting for public office or public policy, but they also are used to choose leaders and to settle policy questions in private organizations, such as corporations, labor unions, and religious groups. They also take place within specific government bodies. For example, the U.S. House of Representatives and state legislatures elect their own leaders.
In elections, a candidate is a person who is selected by others as a contestant. A ballot is anything that a voter uses to express his or her choice, such as a paper and pen or a lever on a machine. A poll is the place where a voter casts his or her ballot.
For government policy and leadership, a general election is commonly understood as a process of voting that regularly occurs at specified intervals. For national elections, Congress has designated the first Tuesday after the first Monday in November as election day. A special election is held under special circumstances. For example, if an elected official dies or resigns from office during her or his term, a special election may be held before the next scheduled general election for the office.
The free election of government leaders is a relatively recent practice. Until the eighteenth century, leaders gained political power through insurrection and birthright. Political thought changed dramatically in eighteenth-century Europe, where industrial progress inspired the reconsideration of individual rights and government. The notion that government leaders should be chosen by the governed was an important product of that movement.
The United States held its first presidential election on February 4, 1789. In that election, George Washington was chosen U.S. president by a small, unanimous vote of electors. Since its infancy, the United States has held elections to decide who will assume public offices, such as the offices of the president and vice president, U.S. senators and representatives, and state and local legislators. Individual states have also held elections for a wide range of other government officials, such as judges, attorneys general, district attorneys, public school officials, and police chiefs.
Elections for public offices are governed by federal and state laws. Article I of the U.S. Constitution requires that a congressional election be held every two years and that senators be elected every six years. Article II provides that a president and a vice president shall be elected for a four-year term. In 1951, the states ratified Amendment 22, which provides that no person may serve as president more than twice.
For the federal oversight of national elections for public office, Congress created the Federal Election Commission (FEC) with 1974 amendments to the Federal Election Campaign Act of 1971 (2 U.S.C.A. §§ 431 et seq.). The FEC provides for the public financing of presidential elections. It also tracks and reveals the amounts and sources of money used by candidates for national office and their political action committees (PACs). The FEC enforces the limits on financial contributions to, and expenditures of, those candidates and committees. To receive FEC funding, PACs must register with the FEC.
States regulate many aspects of government elections, including eligibility requirements for candidates, eligibility requirements for voters, and the date on which state and local elections are held. U.S. citizens have the right to form and operate political parties, but the state legislature may regulate that right. For example, a candidate may not be placed on an election ballot unless he or she has registered with the state election board. Many states maintain stringent requirements for would-be candidates, such as sponsorship by a certain number of voters on a petition. A monetary deposit also might be required. Such a deposit may be forfeited if the candidate fails to garner a certain proportion of the vote in the election.
Some states have sought to place limitations on contributions received by individual political candidates. In Nixon v. Shrink Missouri Government PAC, 528 U.S. 327, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000), the U.S. Supreme Court upheld limitations that the state of Missouri had placed upon contributions to individual candidates for state office, against a challenge that the limitations violated the contributors' and candidates' First Amendment rights. (See also Election Campaign Financing).
No state may abridge voting guarantees of the U.S. Constitution. Under the Constitution's Twenty-Fourth Amendment, for example, no state may make the payment of a poll tax or other tax a requirement for voting privileges. Under the Fifteenth Amendment, states may not deny the right to vote based on "race, color, or previous condition of servitude." The Nineteenth Amendment prevents states from denying or abridging the right to vote based on sex.
In the early 1990s, 15 states passed legislation that limited the tenure of U.S. senators and representatives. In 1995, these "term-limit" measures were declared unconstitutional by the U.S. Supreme Court. In United States Term Limits v. Thornton, 514 U.S. 779, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995), the state of Arkansas had amended its constitution to preclude persons who had served a certain number of terms in the U.S. Congress from placing their names in future U.S. Congress elections. Arkansas cited Article I, Section 4, Clause 1, of the U.S. Constitution for support. This clause allows that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." Arkansas further argued that its amendment merely restricted ballot access and was not an outright disqualification of congressional incumbents.
The Supreme Court disagreed with Arkansas. In a 5–4 opinion, the Court rejected the constitutionality of any term-limits legislation. According to the majority, the only qualifications for U.S. congressional office were contained in two constitutional clauses. Article I, Section 2, Clause 2, of the U.S. Constitution provides that a representative shall be at least 25 years of age, a citizen of the United States for at least seven years, and a resident of the represented state at the time of the election. Article I, Section 3, Clause 3, states that a senator shall be at least 30 years of age, a citizen of the United States for at least nine years, and an inhabitant of the represented state when elected. These provisions, according to the Court, were designed to be the only qualifications for U.S. congressional office, and any additional qualifications are unconstitutional.
Although the Constitution prohibits term limits for the U.S. Congress, it does not prevent states from setting term limits for their own legislatures.
Administration of Government Elections
Voters register with a precinct, which is a local voting district. Registration must be accomplished in the manner prescribed by state statute. The polling place may be any structure authorized by the state to serve as such. All states allow Absentee Voting for persons who cannot be present in their precinct on election day. Voting is secret, whether by absentee ballot or at the polls.
Election officials are charged with the supervision of voting. In some states, voters indicate their preferences by pulling a lever in a voting machine; in other states, they use a paper and pen. At the end of the voting day, election officials count, or canvass, the results and report them to city or county officials or to the state board of elections. The complete results are filed with the Secretary of State or some other designated state-government official. The candidate with the most votes is then declared the winner of the election. This process is called a direct election because the winner is determined by a straight count of the popular vote.
The election of a president and vice president usually occurs by indirect election. That is, the winner is usually determined not by a popular vote but by an electoral vote. Each state has a certain number of electors, is equal to the total number of senators and representatives to which the state is entitled in Congress. In theory, an elector may vote for whomever he or she wants, but in practice, electors vote for the winner of the popular vote in their state.
Primaries and Conventions
A political party is entitled to nominate candidates for public office, subject to regulation by Congress and state legislatures. The nominating process is accomplished through a system of primaries, caucuses, and nominating conventions. The process varies from state to state, but generally, primaries and caucuses produce delegates who later cast votes at a nominating convention held several weeks or months before Election Day. Political parties hold nominating conventions at the local, state, and national levels to choose candidates for public office in the upcoming elections. A primary is a preliminary election held by a political party before the actual election, to determine its candidates. A primary may be open or closed. An open primary is one in which all registered voters may participate. The number of delegates a candidate receives is then based on the candidate's performance. In some states, the winner of the popular vote wins all the delegates available to the state at the nominating convention. In other states, candidates receive a portion of delegates based on their respective showings.
In a closed primary, only voters who have declared their allegiance to the party may vote. Closed primaries may be indirect or direct. In an indirect, closed primary, party voters only elect delegates who later vote for the party's candidates at a nominating convention. In a direct, closed primary, party voters actually decide who will be the party's candidates, and then choose delegates only to communicate that decision at the nominating convention.
In some states (e.g., Iowa), political parties use a caucus system, instead of a primary system, to determine which candidates to support. A caucus is a local meeting of registered party members. The manner in which delegates are chosen at these caucuses varies widely from state to state. In some states, each party member who attends the caucus is entitled to one vote for each office. The caucus then produces an allotment of delegates based on the popular vote in the caucus, and these delegates later represent the caucus in the county, legislative district, state, and national conventions. In other states, those who attend the caucus vote for delegates who pledge their support for certain candidates. These delegates then represent the caucus at the party's nominating conventions.
At a convention, delegates vote to determine who will emerge as the party's candidate. Usually, if no candidate wins a majority of the delegates on the first round, delegates are free to vote for a candidate other than the one whom they originally chose to support. More often than not, candidates have garnered sufficient delegates in the primaries and caucuses before the nominating convention to win the nomination. Where particular nominations are assured prior to the convention, the convention becomes a perfunctory celebration of the party policies, and an advertising vehicle for the nominated candidates.
Conflicts over nomination procedures often arise within a political party. In 1991, the Freedom Republicans, a group representing minority members of the Republican Party, launched an attack on the party's allocation of delegates among the states. Since 1916, the Republican Party had employed a bonus-delegate system as a method of determining delegate representation at its national convention for nominating presidential candidates. Under that system, each state received a number of delegates equal to three times its Electoral College vote. States that elected Republican presidents, senators, representatives, and governors then received an additional allotment of delegates. The bonus delegate system gave certain Republican-dominated states a greater say in choosing the party's presidential candidate.
According to the Freedom Republicans, the bonus-delegate system reduced the representation of minority interests within the party because minority members often came from Democrat-dominated states. The largely rural, Republican-dominated, western states contained small minority populations, so minorities were poorly represented in the Republican delegate system. The Freedom Republicans sued the FEC under title VI of the Civil Rights Act of 1964(42 U.S.C.A. § 2000d) in an attempt to stop FEC funding of the Republican National Convention.
The U.S. District Court for the District of Columbia ordered the FEC to create and enforce regulations governing the selection of delegates to the publicly funded national nominating conventions of political parties. On appeal by the FEC, the U.S. Court of Appeals for the District of Columbia Circuit vacated the order. The appeals court held that the connection between the FEC funding and the Republican delegate scheme was insufficient to hold the FEC accountable for the delegate scheme. According to the court, it was also unlikely that the Republican party would change its delegate scheme if funding were withheld (Freedom Republicans, Inc. v. Federal Election Comm'n, 13 F. 3d 412 [D.C. Cir. 1994]).
The First Amendment protects against a state's intrusion on the governance or structure of a political party. However, courts have held that states have the right to enact reasonable regulations of parties, elections, and campaign-related disorder. The U.S. Supreme Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364, 137 L. Ed. 2d 589 (1997) held that states may lawfully prohibit candidates from appearing on a ballot as the candidate of more than one political party.
In 1994, Minnesota State Representative Andy Dawkins ran unopposed for office. Two different political parties, the Democratic-Farmer-Labor party and New Party, wanted him to run on their ballots, which he agreed to do. Local election officials, citing so-called "anti-fusion" laws, refused to place Dawkins on the ballot under the "fused" parties. The New Party, a minor political party, brought suit, alleging that the anti-fusion law violated its First Amendment associational rights.
Although the U.S. Court of Appeals for the Eighth Circuit agreed that the system was unconstitutional, the U.S. Supreme Court reversed, finding that the state of Minnesota had "important regulatory interests" in forbidding a candidate from appearing on the same ballot. The Court, per Chief Justice william rehnquist, noted that a party does not have the absolute right to have its nominee appear on the ballot as a candidate, and that the anti-fusion law did not impose a severe burden on the New Party. The Court also rejected the New Party's contention that this law interfered with the ability of a minor party to take part in the election process.
Initiatives and Referendums
The voting results on important questions of public policy are commonly known as referendums or propositions. These results decide whether a policy becomes law or whether a state constitution will be revised or amended. An initiative is the bringing about of legislative or constitutional changes through the filing of formal petitions. If an initiative is supported by a certain percentage of the population, it may be included on an election ballot for public approval. Referendums and initiatives allow for the development of legislation independent of formal legislative processes. Not all state constitutions provide for referendums and initiatives.
The U.S. Supreme Court, in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999), considered the constitutionality of a series of controls on the petition process for placing initiatives on the ballot in the state of Colorado. The controls included requirements that the individuals who circulated petitions were registered voters and that those who circulated petitions wear badges indicating whether they were volunteers or paid employees (and, if they were paid employees, the names and telephone numbers of their employers). Although states may place certain limitations on these ballots and initiatives, the Court held that the particular limitations in Colorado violated the First Amendment associational rights of the petitioners.
A campaign is the time preceding an election that a candidate uses for promotion. Election campaigns for public offices in the United States have evolved into complex, expensive affairs. Candidates rely on a variety of support, from financial contributions to marketing and campaign specialists. Elections for national office require large sums of money for advertising and travel. Local elections also favor candidates who are well financed. Historically, the money needed for successful campaigns has come from major political parties, such as the Republican and Democratic parties.
The U.S. Congress and state legislatures prohibit a wide variety of conduct in connection with elections. It is criminal conduct, for example, for a candidate to promise an appointment to public office in return for campaign contributions (18 U.S.C.A. § 599). Numerous laws prohibit the coercion of voters, including the solicitation of votes in exchange for money, interference with voting rights by armed forces personnel and other government employees, and the intimidation of voters.
The enforcement of criminal laws can face the odd challenge on election day. In State v. Stewart, 869 S.W.2d 86 (Mo. App. 1993), Robbin Stewart was stopped for speeding as he returned from voting in a primary election. Stewart argued that the case against him should have been dismissed because article VIII, section 4, of the Missouri Constitution provided that voters should be "privileged from arrest while going to, attending and returning from elections, except in case of Treason, felony or breach of the peace."
The Missouri Court of Appeals for the Western District rejected Stewart's argument. The appeals court noted that in the past, the Missouri Committee on Suffrage and Elections had entertained the idea that the clause cited by Stewart should apply to primary elections as well as general elections, and that the committee had refused to adopt the expansion. In a footnote, the court advised that the U.S. Supreme Court had construed the phrase "treason, felony or breach of the peace" as including all criminal offenses (Williamson v. United States, 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278 ). Such a reading would seem to nullify the objective of Missouri's constitutional clause. Nevertheless, the existence of such an election-day privilege is a testament to the importance of free elections in the United States.
The 2000 presidential election was one of the most controversial in U.S. history, where george w. bush won the election by defeating former Vice President albert gore jr. in the electoral college despite the fact that Gore had won the popular vote. Although much of the attention of the country focused upon contested election returns in the state of Florida, the election also involved other controversies. In 2000, a resident of Illinois, James Baumgartner, opened a web site called Voteauction.com, which purported to allow voters to sell their absentee ballots over the Internet to the highest bidders. Although a court in Illinois quickly closed it down, the site reopened in several other states. State and federal law enforcement officials hounded Baumgartner, who finally sold the site to an Austrian, Hans Bernhard.
Baumgartner claimed that he had opened the site as a publicity stunt to raise awareness of Fraud in government. Bernhard, on the other hand, maintained that he operated the site for the purpose of making a profit. Several state and local agencies brought actions against him immediately, seeking to have the site shut down before the November 7, 2000 election. Moreover, Bernhard faced a Contempt charge for violating a court order in Illinois requiring him to shut the site down. Bernhard's Internet service provider eventually shut down the site before the election.
Amy, Douglas J. 2000. Behind the Ballot Box: a Citizen's Guide to Voting Systems. Westport, Conn.: Praeger.Norris. Pippa, ed. 1998. Elections and Voting Behavior: New Challenges, New Perspectives. Brookfield, Vt.: Ashgate, Dartmouth.
van Schagen, J.A. 2000. Electoral Systems and Representative Government. Nijmegen, Belgium: Stichting Ars Aequi.