Thursday, September 10th, 2020

Federal law barring false voter registrations applies to town election because New York’s “unitary registration scheme” allows a falsely registered voter to vote in future federal elections. And the Travel Act’s bar on “bribery” is not limited to acts involving public officials (as payees) and encompasses a New York law barring payments to voters.

In United States v. Smilowitz, 2d Cir. No. 19-361 (Sep. 8, 2020), a panel of the Court (Walker, Parker, and Carney) ruled that the defendant’s conduct of falsely registering voters for a town election, and of offering payment to voters for their votes in that election, fell within the reach of the federal election law, 52 U.S.C. § 10307, and qualified as “bribery” under the Travel Act, 18 U.S.C. § 1952(b). Here are the essential facts.

Smilowitz owned part of a real-estate development in Bloomingburg, New York, population 420. It had a mayor and two trustees.

In 2013 those officials voted against a measure that would have benefitted Smilowitz and several other real-estate developers. Hoping to overturn that decision, Smilowitz and his confederates tried to influence the 2014 election and replace the local officials with candidates amenable to them.

The conspirators did several things giving rise to this prosecution. First, they approached members of the Hasidic communities in Kiryas Joel and Williamsburg (Brooklyn) and offered them cash and rental subsidies in exchange for moving to Bloomingburg and registering to vote. Second, because few actually did so, the conspirators fraudulently registered 142 new voters in town. The conspirators submitted registration forms for these individuals, falsely claiming Bloomingburg residency, among other things. Finally, on election day, the conspirators transported the fraudulently registered voters from other towns to cast ballots in Bloomingburg.

The scheme failed after a fraud investigation. Out of 265 votes cast, 157 were invalidated. The result was re-election of the incumbent mayor who opposed the developers.

Based his role in the scheme Smilowitz pleaded guilty to a single count of § 371 conspiracy with two components – conspiring to violate the federal election law, § 10307; and conspiring to commit bribery, in violation of the Travel Act, § 1952, and New York Election Law § 17-142, which bars paying a person to vote (or not vote). He then argued on appeal that the conviction must be dismissed because (1) his misconduct concerned a purely local election and was thus not covered by § 10307, and (2) offering payments to potential voters does not constitute “bribery” within the meaning of § 1952, which is limited to solicitation of public officials

Judge Walker writing for the Court rejected both arguments and affirmed the conviction.

First, the Court found that Smilowitz fell under § 10307 because of New York’s “unitary” registration system, “whereby registration entitles an individual to vote in all local, state, and federal government elections.” Op. 8. This meant that “Smilowitz’s fraudulent conduct has the potential to influence future federal elections.” Id. 13. Because “New York’s unitary registration process permanently qualifies a registrant to cast ballots in any local, state, or federal election,” and because “§ 10307(c) reaches voter registrations that pertain to the federal elections,” the Court held, “Smilowitz’s conduct is within the statute’s purview.” Id.

“The fact that no federal candidate was on the Bloomingburg ballot on March 18, 2014 is of no moment. Because of New York’s unitary registration system, Smilowitz’s actions exposed future federal elections to corruption.” Id.

Second, the Court rejected Smilowitz’s argument that a violation of § 17-142 of the New York Election Law — barring payments to voters in exchange for votes — did not constitute “bribery” within the meaning of § 1952(b) of the Travel Act because New York’s own “bribery” law — Penal Law §§ 200.00, 200.03 & 200.04 — requires that a “public official” be the target of the defendants’ solicitations. The Court pointed to decades-old precedent from the Supreme Court (as well as the Circuit itself) holding that Travel Act “bribery” is generic bribery, which “includes the corruption of any public official and the bribery of voters and witnesses as well.” Op. 18 (citing Perrin v. United States, 444 U.S. 37 (1979)). “Because Travel Act bribery is construed broadly,” the Court held, “the lack of a precise fit between § 17-142 and the New York bribery statute does not matter.” Op. 19.

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