Can You Buy Votes With Underwear?

How about ramen noodles and chicken?

Here’s a campaign slogan: Underwear for Change

Michigan Republicans want local prosecutors to throw the book at Michael Moore, after the Fahrenheit 9/11 director doled out ramen and underwear to college students. The gifts were given in exchange for the students’ promises to vote—not necessarily for John Kerry—in November. Is it illegal to bribe someone to vote, even if the person doing the bribing doesn’t tell the bribee which candidate to choose?

Regardless of the briber’s intentions, paying for turnout is illegal in federal elections. As long as there is a federal candidate on the ballot, no one may offer something of value—whether it’s a $100 bill or a package of Top Ramen—to get someone to the polls. The ban was part of the Voting Rights Act of 1965, which included a section specifically forbidding anyone from offering or accepting payment “either for registration to vote or for voting.” This has been interpreted to cover all bribes geared toward coaxing voters to their respective polling stations.

There are a few minor exceptions, which the Department of Justice has permitted over the years. A civic group, for example, may provide rides to polling stations for elderly voters, even though such rides could be construed as having a monetary value. Similarly, an employer can give his workers some paid time off in order to facilitate voting. But instant soup and underwear? That could cross the line, although the final decision on whether to prosecute rests with the Department of Justice. The current maximum punishment for such a transgression is five years in prison and a $250,000 fine.

The Michigan GOP, though, asked county, not federal, prosecutors to pursue Moore. Payment for turnout is apparently illegal under Michigan state law, too. So far, however, the Michigan prosecutors don’t seem too jazzed to pursue Moore; one flat-out rejected the Republicans’ request in a letter, stating that her time is far better spent “prosecuting those who are delivering cocaine to our young people rather than underwear.”

For elections in which there is no federal candidate on the ballot, the laws vary from state to state. Most follow Michigan’s lead in mimicking the federal statute, although there are exceptions. In California, for example, it is legal to offer inducements for casting a ballot. In 1999, the state Democratic Party infamously offered vouchers good for free chicken dinners to residents of Alameda County. To obtain their meals, voters simply had to mail in ballot stubs from the State Assembly election. The plan backfired, as critics branded the chicken offer unethical, albeit legal. As a result, in one of the biggest electoral surprises of the past few years, the Green Party’s Audie Bock beat Democrat Elihu Harris, a former mayor of Oakland.

Next question?

Explainer thanks Nathaniel Persily of the University of Pennsylvania Law School and Bryan Whitener of the Election Assistance Commission.