4. Non-interference with Elections
The Justice Department’s goals in the area of election crime are
to prosecute those who violate federal criminal law and, through such
prosecutions, to deter corruption of future elections. The
Department does not have a role in determining which candidate won a
particular election, or whether another election should be held
because of the impact of the alleged fraud on the election. In most
instances, these issues are for the candidates to litigate in the courts or
to advocate before their legislative bodies or election boards.
Although civil rights actions under 42 U.S.C. § 1983 may be brought by
private citizens to redress election irregularities, the federal prosecutor
has no role in such suits.
In investigating an election fraud matter, federal law
enforcement personnel should carefully evaluate whether an
investigative step under consideration has the potential to affect the
election itself. Starting a public criminal investigation of alleged
election fraud before the election to which the allegations pertain has
been concluded runs the obvious risk of chilling legitimate voting and
campaign activities. It also runs the significant risk of interjecting the
investigation itself as an issue, both in the campaign and in the
adjudication of any ensuing election contest.
Accordingly, overt criminal investigative measures should not
ordinarily be taken in matters involving alleged fraud in the manner in
which votes were cast or counted until the election in question has been
concluded, its results certified, and all recounts and election contests
concluded.
Not only does such investigative restraint avoid
interjecting the federal government into election campaigns, the
voting process, and the adjudication of ensuing recounts and election
contest litigation, but it also ensures that evidence developed during
any election litigation is available to investigators, thereby
minimizing the need to duplicate investigative efforts. Many election
fraud issues are developed to the standards of factual predication for a
federal criminal investigation during post-election litigation.
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