League Of Women Voters May Pay For $5 Voter Registration Scheme

There is a photograph from a voter-registration drive in Leavenworth County, Kansas, that deserves the attention of federal election officials. At a table staffed by the League of Women Voters of Leavenworth County sits a sign bearing the familiar Starbucks logo. Its message could hardly be clearer:

Register to vote
Get a $5
Starbucks Gift
Card

Another photograph posted on the League’s Facebook page shows two students proudly holding Starbucks gift cards. One of them also holds up her phone. The screen appears to say: “Success! We have submitted your application.”

This is not evidence of some obscure paperwork violation. Nor is it the first time pay-to-register or pay-to-vote schemes have come to the surface. As The Federalist reported back in 2020, similar payments were made in Nevada and elsewhere in the 2020 presidential election.

These schemes raise a straightforward question under a federal criminal statute that has been on the books for more than half a century: Can an organization offer people something of monetary value in return for registering to vote or for voting?

Congress’s answer is straightforward.

Section 10307(c) of Title 52 provides criminal penalties for anyone who “knowingly or willfully … pays or offers to pay or accepts payment either for registration to vote or for voting.” The maximum penalty is five years’ imprisonment and a $10,000 fine.

Notice how comprehensive the language is. It prohibits not merely paying, but offering to pay. And it covers not only the person making the payment but also the person who “accepts payment” for registering or voting.

The reason is not difficult to understand. Registering eligible citizens to vote is an entirely legitimate civic activity. Paying them to do it is something else.

The Justice Department itself has long recognized that distinction. Its Federal Prosecution of Election Offenses explains that the prohibition is not limited to envelopes stuffed with cash. Things having monetary value can qualify as payment. DOJ distinguishes an inducement or reward for electoral participation from assistance that merely facilitates a decision someone has already made — for example, transportation to the polls.

A Starbucks gift card presents a particularly uncomplicated example of something with monetary value. It says $5 right on the offer.

And this was not, at least according to the photographic evidence, merely a free refreshment available to everybody attending a civic event. The sign did not say “Free Starbucks gift card — stop by and learn about voter registration.” It said: “Register to vote. Get a $5 Starbucks Gift Card.”

That distinction matters.

There is also substantial case law applying the federal statute to payments for registration. In United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972), the 7th Circuit affirmed a trial court’s denial of a motion to dismiss indictments arising from a scheme to pay people to register (although it reversed the convictions due to problems with the jury voir dire), holding that the statute applied both to those who pay and those who accept payment for registering to vote.The court was careful to distinguish unlawful payments from legitimate civic efforts assisting citizens with registration.

More recently, the 2nd Circuit decided United States v. Smilowitz, 974 F.3d 155 (2d Cir. 2020). That case involved far more serious conduct, including false registrations and a scheme connected to a local election. But the indictment also charged conspiracy under 18 U.S.C. § 371 to buy voter registrations in violation of § 10307(c). The 2nd Circuit upheld the conviction and held that the federal statute can reach registration practices affecting eligibility to participate in future federal elections.

That does not mean the Kansas League of Women Voters chapter or any particular person shown in these photographs has committed a crime. Criminal liability requires proof of all the statutory elements, including the applicable state of mind. The photographs cannot tell us who devised the program, who paid for the cards, what organizers understood, or exactly what each student was told.

Those are reasons to investigate, not reasons to ignore the evidence. Kansas Attorney General Kris Kobach has already sent a cease and desist order to the league, and he sent a criminal referral to the U.S. attorney in Kansas. Although the national office of the League responded that it is “committed to complying” with the law that prohibits payments for registrations, its local chapter sure seems not to have received the memo.

There is also an important mens rea question. Section 10307(c) says “knowingly or willfully.” Ordinarily, when Congress uses “knowingly,” the government must establish knowledge of the facts constituting the prohibited conduct, not necessarily knowledge of the federal statute that makes the conduct unlawful. Whether that general rule applies in precisely the same way here would ultimately be a question for prosecutors and, if charges were brought, the courts.

But the photograph makes the factual inquiry unusually concrete. Someone apparently designed and displayed a sign expressly offering a $5 gift card for registering. Someone apparently obtained the gift cards. Someone staffed the registration table. And photographs posted publicly by the league appear to show the cards being distributed.

That raises another issue: conspiracy. DOJ’s election-crimes guidance explains that conspiracies involving the payment provisions of § 10307(c) may be prosecuted under the general federal conspiracy statute, 18 U.S.C. § 371. Lewin itself involved such a conspiracy, and Smilowitz confirms that prosecutors have continued to use §§ 371 and 10307(c) together in voter-registration cases.

Again, the photographs do not necessarily establish a conspiracy. They do provide an obvious reason to determine whether multiple people agreed to create and implement the gift-card program.

Nor should the investigation begin with the students. High school seniors offered a $5 Starbucks card by adults conducting what presumably appeared to be an entirely legitimate voter-registration drive are hardly the most significant actors here. The important questions concern the people who organized the program: Who conceived it? Who approved it? Who purchased the cards? Who made the sign? Were cards actually conditioned upon submitting a registration application? How many were distributed?

Those questions should be answerable with little difficulty.

Election law should also be enforced without regard to the political identity of the organization involved. The League of Women Voters describes itself as nonpartisan. Whatever one’s assessment of that characterization or the league’s policy positions, neither should determine the legal analysis. The same statutory standard should apply to the League of Women Voters, a conservative voter-registration organization, a labor union, a church, a corporation, or a political campaign. That principle is particularly important when election-law enforcement itself has become politically contentious.

Federal law encourages voter registration. It protects lawful voter-registration drives. But Congress drew a line at paying people to register or vote. A photograph from Leavenworth County appears to show a sign putting that proposition to a remarkably simple test: “Register to vote. Get a $5 Starbucks Gift Card.”

The Justice Department should determine whether what happened behind that sign crossed the line Congress drew.

Dr. John Eastman is a senior fellow at the Claremont Institute and director of the Institute’s Center for Constitutional Jurisprudence. On behalf of the Institute, he filed an amicus curiae brief in the Slaughter case, urging the court to overrule its New Deal-era precedent, Humphrey’s Executor.