eliminated the statutory tools that had encouraged federal activism in
election fraud matters. Two surviving provisions of these Acts, now
embodied in 18 U.S.C. §§ 241 and 242, covered only intentional
deprivations of rights guaranteed directly by the Constitution or
federal law. The courts during this period incorrectly held that the
Constitution directly conferred a right to vote only for federal officers,
and that conduct aimed at corrupting non-federal contests was not
prosecutable in federal courts. See United States v. Gradwell, 243
U.S. 476 (1917); Guinn v. United States, 238 U.S. 347 (1915).
Federal attention to election fraud was further incorrectly limited by
case law holding that primary elections were not part of the official
election process, Newberry v. United States, 256 U.S. 232 (1918),
and by cases like United States v. Bathgate, 246 U.S. 220 (1918), which
read the entire subject of vote-buying out of federal criminal law, even
when it was directed at federal contests.
In 1941, the Supreme Court reversed direction, overturning
Newberry. The Court recognized that primary elections are an
integral part of the process by which candidates are elected to office.
United States v. Classic, 313 U.S. 299 (1941). Classic changed the
judicial attitude toward federal intervention in election matters and
ushered in a new period of federal activism. Federal courts now
regard the right to vote in a fairly conducted election as a
constitutionally protected feature of United States citizenship.
Reynolds v. Sims, 377 U.S. 533 (1964).
In 1973, the use of Section 241 to address election fraud
began to expand. See, e.g., United States v. Anderson, 481 F.2d 685
(4th Cir. 1973), aff’d on other grounds, 417 U.S. 211 (1974). Since
then, this statute has been successfully applied to prosecute certain
types of local and tribal election fraud. United States v. Wadena, 152
F.3d 831, 843–47 (8th Cir. 1998) (applying Section 241 to the
fabrication and false notarization of absentee ballots in tribal election);
United States v. Olinger, 759 F.2d 1293, 1296–98 (7th Cir. 1985)
(fabrication of absentee votes in mixed federal state election); United
States v. Stollings, 501 F.2d 954, 955 (4th Cir. 1974) (rejecting
defendant’s argument that a federal grand jury lacked authority to
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