UPDATE, 6:03 p.m. — Kenneth McGhie, the general counsel for the elections board, agrees the key word is "bribery." But he's using a different definition than Cheh and Tokaji.
McGhie is looking at the District's criminal code. Here's how it defines bribery:
(a) A person commits the offense of bribery if that person:
(1) Corruptly offers, gives, or agrees to give anything of value, directly or indirectly, to a public servant; or
(2) Corruptly solicits, demands, accepts, or agrees to accept anything of value, directly or indirectly, as a public servant;
in return for an agreement or understanding that an official act of the public servant will be influenced thereby or that the public servant will violate an official duty, or that the public servant will commit, aid in committing, or will collude in or allow any fraud against the District of Columbia.
The key words here are now "public servant." Under District criminal code — which is different from the Model Penal Code Zvenyach cited — you can't bribe a regular voter, only a public servant. McGhie assumes the language in the Corrupt Elections Act was intended to prevent the corruption of election officials.
McGhie points out the only definition that really matters is the definition the U.S. Attorney's office (who would prosecute vote-buyers) chooses to use.
"They're the ones with the final say," McGhie said. "They're not going to care about the model code. They're not going to care about what I say."
For right now, the two interpretations seem equal. And until the U.S. Attorney's office weighs in, we don't have a final rule. Temporarily, we're giving the Gray campaign's statement that vote-buying is illegal a grade of 50/50.
UPDATE, 4:33 p.m. — We contacted the office of Ward 3 Councilmember Mary Cheh, who sponsored the vote buying ban this summer, for some clarification. Cheh, a constitutional law professor at The George Washington University, has endorsed Gray.
Daniel Zvenyach, her chief of staff, just e-mailed us back. Here's (part of) what he had to say:
The Model Penal Code covers “bribery” as follows: “offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another any pecuniary benefit as consideration for the recipient's decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter.” So, if you construed the statute to track that definition, the District law would read as follows: “Any person who shall ... be guilty of offering, conferring, or agreeing to confer any pecuniary benefit as consideration for the recipient's vote of any voter…” That’s actually pretty close.
Then there’s 1-1001.12, which says that “No one shall interfere with the registration or voting of another person, except as it may be reasonably necessary in the performance of a duty imposed by law.” You could make a case that paying someone to vote “interferes” with the voting of another person (or the related right not to vote). Then there may be restrictions imposed under the District’s general fraud statutes, but I don’t profess expertise in that area.
Bottom line is that District law might independently prohibit the paying for votes. The District would do well, though, to pass a local version of the federal law to remove any doubt.
Basically, Zvenyach said, Cheh wanted the explicit language banning vote buying in the law as a way to clarify its intentions.
UPDATE, 4:23 p.m. — We just talked to Daniel Tokaji, an election law professor at The Ohio State University. He agreed the existing District law was pretty vague.
"The statute you've given me isn't a model of clarity," Tokaji said, adding that he hadn't studied District election law in-depth.
Still, he thought the use of the word "bribery" was important in the law, and noted that it wasn't defined. Its use, he said, implied to him that if it someone was given a financial benefit in exchange for voting for a particular candidate, it would be illegal. Simply paying someone to vote, without requiring that they cast their ballot for one candidate, wouldn't fall under the law.
This interpretation would make the alleged behavior of the Fenty campaign illegal.
UPDATE, 3:44 p.m. — So it might not always be illegal to buy a vote in D.C. The federal law prohibiting it only applies to elections where a federal office — in this case, the seat of Del. Eleanor Holmes Norton — is on the ballot. With Norton up for re-election every two years, that covers most council and mayoral elections. But the law wouldn't apply to any special election (where Norton presumably wouldn't be on the ballot).
ORIGINAL: The answer to the above question is yes. No one disputes that buying a vote is a violation of federal law, which applies to District elections. What's not clear is whether or not buying a vote is illegal under District law.
On a conference call earlier today about allegations incumbent Mayor Adrian Fenty's campaign is paying people to vote for him, Mo Elleithee, a senior advisor to Vince Gray's campaign, and Lloyd Jordan, a lawyer for the campaign, repeatedly said it is illegal under District law to pay someone to vote.
An hour or so later, officials from the Board of Elections and Ethics said vote buying was clearly against federal law, and said it might violate a District bribery law.
We went back to Jordan and asked him what District law he was referencing. He said there was an election law making it illegal to buy votes.
"I'm sad they aren't familiar with that," he said.
Jordan pointed us to District law § 1-1001.14, the Corrupt Election Practices Act. This is what the relevant section of the law says (emphasis ours):
(a) Any person who shall register, or attempt to register, or vote or attempt to vote under the provisions of this subchapter and make any false representations as to his or her qualifications for registering or voting or for holding elective office, or be guilty of violating § 1- 1001.07(d)(2)(D), § 1-1001.09, § 1-1001.12, or § 1-1001.13 or be guilty of bribery or intimidation of any voter at an election, or being registered, shall vote or attempt to vote more than once in any election so held, or shall purloin or secrete any of the votes cast in an election, or attempt to vote in an election held by a political party other than that to which he or she has declared himself or herself to be affiliated, or, if employed in the counting of votes in any election held pursuant to this subchapter, knowingly make a false report in regard thereto, and every candidate, person, or official of any political committee who shall knowingly make any expenditure or contribution in violation of subchapter I of Chapter 11 of this title, shall, upon conviction, be fined not more than $10,000 or be imprisoned not more than 5 years, or both.
Lacking a law degree, we're not going to make a final call on this. And one big question remains: If it was always illegal to buy votes, why did the Gray-led council bother to pass a law making it illegal to buy votes?
Jordan said he wasn't sure.
We're going to keep looking into this. At the moment, we have Insufficient Evidence to Rule.