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Why Busing Voters to the Polling Station is Paying People to Vote

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Abstract

In this paper, we argue that the widespread practice in the United States of busing voters to the polling station on Election Day is an instance of paying people to vote. We defend a definition of what it means to pay people to vote, and on this definition, busing voters to the polling station is an instance of paying people to vote. Paying people to vote is illegal according to United States federal election law. However, the United States courts have historically considered the practice of busing voters to the polling station legally permissible. The United States legal system, therefore, faces a dilemma: either the courts must change their interpretation of current federal election law such that busing voters to the polling station is a violation of federal election law, or federal election law must be changed so that at least some instances of paying people to vote are legally permissible. We argue that choosing either horn of the dilemma has a controversial implication for the United States legal system.

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Notes

  1. The public health and welfare, 42 U.S.C. §1973i(c) (2010).

  2. Crimes And Criminal Procedure, 18 U.S.C. §597 (2018).

  3. Note that § 597 has a broader scope than § 1973i(c). The former statute criminalizes the act of paying individuals to vote as well as the act of paying individuals to abstain. § 1973i(c) is silent on the issue of paying individuals to abstain.

  4. See Marshall Cohen, ‘Michigan Judge Blocks Law that Banned Paid Transportation to Polls’, CNN, September, 18' 2020, https://www.cnn.com/2020/09/17/politics/election-2020-michigan-paid-transportation-polls/index.html.

  5. Craig C. Donsanto and Nancy L. Simmons, Federal Prosecution of Election Offenses, 7th ed. (Washington, D.C.: U.S. Dept. of Justice, Public Integrity Section, 2007).

  6. (Donsanto and Simmons, Federal Prosecution of Election Offenses, 7th ed, p. 11). Donsanto and Simmons presents an official US Department of Justice perspective on federal election legislation and on how to investigate and prosecute election offenses. The book is published by the US Department of Justice and has this passage at the very beginning of chapter one: ‘This book was written to help federal prosecutors and investigators discharge the responsibility of the United States Department of Justice in attacking corruption of the election process with all available statutes and theories of prosecution. It addresses how the Department handles all federal election offenses, other than those involving civil rights, which are enforced by the Department’s Civil Rights Division. This Overview summarizes the Department’s policies, as well as key legal and investigative considerations, related to the investigation and prosecution of election offenses’. Donsanto and Simmons, Federal Prosecution of Election Offenses, 7th ed, p. 1.

  7. United States v. Lewin, 467 F.2d 1132 (United States Court of Appeals, 7th Cir. 1972). USA.

  8. See Donald P. Green and Oliver A. McClellan, ‘Election Festivals and Voter Turnout: An Overview of Recent Research’, SSRN Journal (March 4, 2020) for a detailed account of the defining characteristics of election festivals as well as the impact of such festivals on turnout.

  9. See Bolder Advocacy. Can a Nonprofit Provide Incentives to Encourage Citizens to Register to Vote or Vote? Bolder Advocacy, 2016, https://www.bolderadvocacy.org/wp-content/uploads/2016/04/Can-a-Nonprofit-Provide-Incentives.pdf; Byron Tau, ‘Election Day Giveaways Steer Toward the Right Side of the Law’, The Wall Street Journal, October 31, 2020, https://www.wsj.com/livecoverage/election-live-updates-trump-biden-2020-10-30/card/Ag7pzgu79eW5Z5ZMSk28.

  10. Christopher Freiman, ‘Vote Markets’, Australasian Journal of Philosophy 92(4) (2014): pp. 759–774.

  11. Kasper Lippert-Rasmussen, ‘Vote Buying and Election Promises: Should Democrats Care about the Difference?’ Journal of Political Philosophy 19(2) (2011): pp. 125–144. Nichter provides a useful discussion of the difference between vote buying and turnout buying. Simeon Nichter, ‘Vote Buying Or Turnout Buying? Machine Politics and the Secret Ballot’, The American Political Science Review; Am Polit Sci Rev 102(1) (2008): pp. 19–31.

  12. It is commonly accepted that turnout buying and vote buying are morally objectionable; Robert E. Goodin, Reflective Democracy (Oxford: Oxford University Press, 2005): p. 167; David Copp, Capitalism Versus Democracy: The Marketing of Votes and the Marketing of Political Power, 2000): p. 88; Alexandru Volacu, ‘Electoral Quid Pro Quo: A Defence of Barter Markets in Votes’, Journal of Applied Philosophy 36(5) (2019): pp. 769. However, several theorists have recently defended markets in votes. Freiman defends a legal right to buy and sell votes. Christopher Freiman, Vote Markets, pp. 759–774. Taylor and Brennan defend a moral right to buy and sell votes. James Stacey Taylor, ‘Two (Weak) Cheers for Markets in Votes’, Philosophia 46(1) (2018): pp. 223–239; Jason Brennan, The Ethics of Voting (Princeton: Princeton University Press, 2011). Volacu says that there are at least two plausible prima facie reasons in favor of barter voting markets Alexandru Volacu, ‘Electoral Quid Pro Quo: A Defence of Barter Markets in Votes’, pp. 769–784.

  13. Grant Lamond, ‘Precedent and Analogy in Legal Reasoning’, in Edward N. Zalta. (ed.), The Stanford Encyclopedia of Philosophy, Spring 2016 ed. (Stanford: Metaphysics Research Lab, Stanford University, 2016).

  14. Grant Lamond, Precedent and Analogy in Legal Reasoning.

  15. The transaction conception of paying someone to vote is a conception of turnout buying. However, it could easily be changed into a conception of vote buying by substituting ‘simpliciter’ with ‘for a particular candidate/policy’.

  16. Kasper Lippert-Rasmussen, Vote Buying and Election Promises: Should Democrats Care about the Difference? pp. 127.

  17. Note that US courts have historically interpreted § 1973i(c) to apply even if the voter in question decided not to vote after the transaction took place. Craig C. Donsanto, Federal Prosecution of Election Offenses, 5th ed. (Washington, D.C.: U.S. Dept. of Justice, Criminal Division, Public Integrity Section, 1988), p. 19.

  18. In this section, we invoke a broader conception of ‘costs’ than a narrow one that is tightly connected to the monetary value of something. On this broader conception, particular types of behavior can have costs that cannot easily be measured in money.

  19. Benefactor does not ask Walker for a kind of proof of voting that would yield information about what Walker voted. Asking for such proof would jeopardize the secret ballot, and jeopardizing this would be highly controversial given that the secret ballot is an entrenched democratic institution. Sarah Birch and Bob Watt, ‘Remote Electronic Voting: Free, Fair and Secret?’ The Political Quarterly 75(1) (2004): p. 62; Robert A. Dahl, On Democracy (New Haven: Yale University Press, 1998: p. 96).

  20. In 34 states and Washington, D.C., any qualified voter may vote an absentee/mail ballot without offering an excuse. In the remaining states, an excuse is required. See NCSL, Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, National conference of state legislatures, published July 12, 2022, https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.

  21. See U.S. Department of Justice, The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities, U.S. Department of Justice, Civil Rights Division Disability Rights Section, Published September 2014, https://www.ada.gov/ada_voting/ada_voting_ta.htm.

  22. These three features of Benefactor’s bus service mimic the contingent features that real-life busing services typically have. See, for example, Black Votes Matter, BVM bustour, accessed June 9, 2022, Blackvotesmatter, https://blackvotersmatterfund.org/bvm-bus-tour/ and Lauren Edwards, ‘Churches in Kalamazoo offering voters free rides to and from the polls’, Fox17, November 06, 2018, https://www.fox17online.com/2018/11/06/churches-in-kalamazoo-offering-voters-free-rides-to-and-from-the-polls.

  23. The US Justice Department’s Criminal Division has a policy against prosecuting voters for ‘selling their votes’. Although § 1973i(c) explicitly prohibits selling one’s vote, the main purpose of the statute is to prohibit the buying of other people’s vote. Donsanto, Federal Prosecution of Election Offenses, 5th ed, p. 19. Nevertheless, it does not seem implausible to suggest that a legal system in which the criminal offense of providing a voter with free transportation to the polling station carries a maximum penalty of five years imprisonment violates the principle of proportionality in criminal law – that penalties be proportionate in their severity to the gravity of the defendant’s criminal conduct. For more on this principle, see Andrew von Hirsch, ‘Proportionality in the Philosophy of Punishment: From “Why Punish?” to “How Much?”’, Israel Law Review; Isr. Law Rev 25(3–4) (1991): pp. 549–580.

  24. United States v. Lewin, 467 F.2d 1132 (United States Court of Appeals, 7th Cir. 1972). USA.

  25. It is a common view that voting is a civic duty. P. S. Karlan, ‘Not by Money but by Virtue Won? Vote Trafficking and the Voting Rights System’, Virginia Law Review 80(7) (1994): pp. 1472; Richard L. Hasen, ‘Vote Buying’, California Law Review 88(5) (2000): pp. 1358.

  26. See Joseph Raz, ‘The Rule of Law and its Virtue’, in Joseph Raz. (ed.), The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979), pp. 213 for an argument that laws must be action-guiding.

  27. The purpose of this US Department of Justice publication is ‘to present a current summary of the criminal laws dealing with the subject of elections, and to discuss the policy and procedural considerations which bear on the administration of federal criminal justice in this complex and important area’ Donsanto, Federal Prosecution of Election Offenses, 5th ed. p. v.

  28. Donsanto, Federal Prosecution of Election Offenses, 5th ed. p. 18.

  29. Jason Brennan and Lisa Hill, ‘Part II - Compulsory Voting Defended’, in J. Brennan and L. Hill. (ed.), Compulsory Voting: For and Against (Cambridge: Cambridge University Press, 2014), pp. 109–204; Arend Lijphart, ‘Unequal Participation: Democracy's Unresolved Dilemma Presidential Address, American Political Science Association, 1996’, The American Political Science Review; Am Polit Sci Rev 91(1) (1997): pp. 1–14.

  30. We thank an anonymous reviewer from Law and Philosophy for bringing this objection to our attention.

  31. We thank an anonymous reviewer from Law and Philosophy for bringing this objection to our attention.

  32. For a description of the conditions, one must meet to qualify for receiving food stamps, see USAGov, Food Assistance, The United States government, Updated June 16, 2022, https://www.usa.gov/food-help.

  33. See Dansereau v. Ulmer, 903 P.2d 555 (Supreme Court of Alaska. 1995) USA, https://law.justia.com/cases/alaska/supreme-court/1995/s-6894-1.html.

  34. See Internal Revenue, 26 Electronic Code of Federal Regulations (e-CFR), § 1.132-6 – De minimis fringes (https://www.law.cornell.edu/cfr/text/26/1.132-6).

  35. See IRS, De Minimis Fringe Benefits, https://www.irs.gov, Updated July 6, 2022, https://www.irs.gov/government-entities/federal-state-local-governments/de-minimis-fringe-benefits.

  36. Recall that, according to the US legal system, busing is a type of ‘facilitation payment’ that is ‘given to make it easier for those who have decided to vote to cast their ballots’. Donsanto, Federal Prosecution of Election Offenses, 5th ed. p. 18.

  37. See Clara Hendrickson, ‘Court upholds state ban on hiring transportation to bring voters to the polls’, Detroit Free Press, accessed June 9, 2022, https://bit.ly/3hOFWQO.

  38. For statistics on this election, see (Ron Elving, ‘The Florida Recount Of 2000: A Nightmare That Goes On Haunting’, NPR, November 12, 2018, https://n.pr/3bTETv7).

  39. See Zachary Oren Smith, ‘Iowa's 2nd Congressional District: What you need to know about the nation's closest election between Miller-Meeks and Hart’, Iowa City Press-Citizen, Accessed June 9, 2022, https://bit.ly/3wzSKi1.

  40. Christopher Freiman, Why It's OK to Ignore Politics (Milton: Taylor and Francis, 2020).

  41. Christopher H. Achen and Larry M. Bartels, Democracy for Realists: Why Elections Do Not Produce Responsive Government (Princeton; Oxford: Princeton University Press, 2016).

  42. See footnote 22.

  43. We would like to thank two anonymous reviewers from Law and Philosophy, Jens Damgaard Thaysen, Simone Marsilio, Derek T. Muller, Rick Hasen, and an audience at Aarhus University for very insightful and constructive comments on earlier versions of this paper.

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  1. Department of Culture and Learning, Aalborg University, Aalborg, Denmark

    Jørn Sønderholm

  2. School of Culture and Society , Aarhus University, Aarhus, Denmark

    Jakob Thrane Mainz

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Sønderholm, J., Mainz, J.T. Why Busing Voters to the Polling Station is Paying People to Vote. Law and Philos 42, 437–459 (2023). https://doi.org/10.1007/s10982-022-09469-3

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