cases. Salisbury focused on the issue of voter consent – t h a t i s , whether the voters had, by their conduct, in some way “consented” to having the defendant mark, or help them mark, their own ballots. Cole, on the other hand, focused on whether it was the voter or the defendant who actually expressed candidate preferences. In a more recent case, the Eleventh Circuit followed the rationale in Cole with respect to a scheme to obtain and cast ballots for indigent voters without their knowledge or consent. United States v. Smith, 231 F.3d 800 (11th Cir. 2000). The court even went so far as to note that, in its view, a Section 10307(e) offense could exist regardless of whether the voter had consented to another’s marking his ballot. Id. at 819 n.20. While the approach taken in Cole and Smith is, from a prosecutor’s perspective, preferable to the approach taken in Salisbury, the latter’s discussion of the issue of possible voter “consent” remains important, since facts suggesting the possibility of consent may weaken the evidence of fraud. Taken together, these three cases suggest the following approach to voter “assistance” frauds: • Section 10307(e) most clearly applies to cases of “ballot theft.” Examples of such situations are when the defendant marked the ballots of others without their input; when voters did not knowingly consent to the defendant’s participation in their voting transactions; when the voters’ electoral preferences were disregarded; or when the defendant marked the ballots of voters who lacked the mental capacity to vote or to consent to the defendant’s activities. • Jury instructions for a Section 10307(e) charge should amplify the key term “votes more than once” in the context of the particular case, and specifically define the terms “vote,” and, when appropriate, “consent” and “implied consent.” E.g., 52 U.S.C. § 10310(c)(l) (containing an extremely broad definition of “vote”); 48