goal is to move up the ladder of culpability to candidates, political
operatives, public officials, and others who attempted to corrupt,
or did corrupt, the public office involved.
Federal jurisdiction over election fraud is easily established
in elections when a federal candidate is on the ballot. The mere
listing of a federal candidate’s name on a ballot is sufficient, under
most of the federal statutes used to prosecute voter fraud, to
establish federal jurisdiction. This generally occurs in what are
called “mixed” elections, when federal and non-federal
candidates are running simultaneously. In such cases, the federal
interest is based on the presence of a federal candidate, whose
election may be tainted, or appear tainted, by the fraud, a potential
effect that Congress has the constitutional authority to regulate
under Article I, Section 2, clause 1; Article I, Section 4, clause 1;
Article II, Section 1, clause 2; and the Seventeenth Amendment.
The absence of a federal candidate from the ballot can
present federal law enforcement with special challenges in
attaining federal jurisdiction over election crime. Those
challenges can sometimes be met, provided the investigation
focuses on identifying additional facts that are needed to invoke
application of the federal criminal laws that potentially apply to
both federal and non-federal elections. These generally include
election frauds that involve the necessary participation of public
officers, notably election officials acting “under color of law,”
voting by non-citizens, fraudulently registering voters, or paying
voters in violation of state law.
Federal jurisdiction over campaign financing offenses
under FECA also derives from Congress’s authority to regulate the
federal election process. While a number of the provisions added
to FECA by the Bipartisan Campaign Reform Act (BCRA)
address financial activities by state and local parties that are
generic in the sense that they simultaneously benefit both federal
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