Elements
A very common type of campaign violation, “vote-buying”, has proved very
difficult to prevent or penalize in many countries. The basic elements of this violation
include –
- Promising,
offering or giving;
- Money, goods, services and/or other inducements (such
as promises of employment or special favors or treatment);
- To voters and/or others, including voters’ families or
communities;
- In the run-up to an election, after an election has
been announced or during the campaign;
- By a political party, candidate or others (agents)
operating on their behalf;
- In a way which is intended, or reasonably could be
expected, to influence how voters cast their vote, or would be likely to do so.
Vote-buying, even broadly
defined, is distinct from negative inducements (e.g., pressure or threats) by the authorities or political factions
to prevent voters from supporting political opponents, which are also
relatively common. For example, while
positive vote-buying had been observed in Georgia
in the past, most reported inducements by officials or others during the
parliamentary elections in 2008 were of a negative nature.[1]
In transitional economies,
especially ones with a largely rural population (such as Romania), the power to influence voters through negative
inducements is strong since voters needed to obtain approvals from local
authorities for all sorts of essential activities, even including fuel wood
collection.[2] But the elements of the violation of using
negative influence on voters are more similar to other campaign malpractices
(such as abuse of official position) than to vote-buying.
Enforcement
Depending on how the practice
of “vote buying” (sometimes referred to as vote “bribery”) is defined in law,
there are numerous obstacles to bringing action against perpetrators. Some of the issues include:
- Did the perpetrator give a gift in order
(or, with the “specific intent”) to influence voters to cast their votes
in favor of a particular candidate or political party?
- Was the giver the candidate, an agent or a
third party with an interest in the result?
- Was the value of the gift sufficient to
influence the voter(s), and would they have felt a sufficient inducement
to give their vote in return?
- Was
the gift given to voters directly, or to others (such as their family or
community) close to the voters?
- Was the giver in a position to pressure the
voters to give their vote, such as by withholding their expected gift
until after they voted?
- Would the voters themselves be liable if
they were found to have been influenced in this manner?
It seems that vote-buying is
especially prevalent in elections that are run in single-mandate districts
(SMD). This is because candidates who
win elections in such (relatively small) districts tend to ensconce themselves
politically and economically there.
Also, it is easier to influence a sufficient number of voters to
influence the outcome in such an electoral district.
For the Georgian parliamentary elections, 2008, “vote buying” was redefined[3] to
include material inducements to “citizens” rather than only voters, so that
gifts to communities would be included within its scope. But an actionable
provision of goods or services would have to create “incentives” for voters,
which was difficult or impossible to prove.
In the event, international
observers reported that complaints on this subject were rejected on various
legal grounds, such as: A public official who was on duty did not actually ask
for votes when speaking at a campaign rally; other individuals were involved in
vote-buying, not a candidate or campaign organization; a gift given or promise
made was insufficiently valuable to influence how a voter would vote; and/or
the influence could never be verified as acted upon in the voting booth.
Experience in Armenia also
shows the difficulty of enforcing anti-vote buying provisions. At the time of its spring 2007 parliamentary
elections, Armenia had a very clear and comprehensive provision in the
Electoral Code, which was unusual in that the elements of the offense of
vote-buying did not technically require intent to influence voters in how they
cast their vote. Rather, the provision,
which applied only during the election campaign, covered any promise or
provision of goods or services to voters (later amended to apply more generally
to citizens).[4]
Thus the provision did not as such require showing “specific intent” to
influence voters in order for gifts to voters to constitute an offense during
the campaign period (from the time of candidate registration until shortly
before election day). In addition,
candidates would have been liable if they “personally or through other means”
made such gifts, a clause which could have extended to supporters of a
candidate in addition to the candidate or his/her agents.
Even then, however, the provision was largely not enforced by election
administration or through the courts, since many of the reported incidents
involved gifts to “communities”, not voters; also, transfers often were made
prior to the election campaign or by persons who were not clearly agents of
candidates or political parties. In
addition, a large number of reported instances (including during the campaign,
and even on election day or the day before, when campaigning was prohibited)
could not be verified by investigators.
Despite the substantive provision in the Electoral Code, electoral and
other authorities continued to maintain that some element of intentionality
would have to be shown for such actions to constitute vote “bribery”, as the
practice is called there. And finally,
the authorities maintained that acts of such “bribery” would also have to be
shown to be effective in influencing the vote (which of course could not be
demonstrated, due to the secrecy of balloting).[5]
Ultimately, the prosecutors
did not bring any cases, arguing that criminal cases should be brought under
the bribery laws. But that would be
difficult to demonstrate, since the voters themselves if serving as witnesses
could potentially make themselves criminally liable.[6]
Remedies
In Solomon Islands, where all elections to Parliament are
conducted in SMDs, allegations of vote-buying have been widespread and several
elected candidates have faced judicial proceedings. In 2011, the High Court found that apparently
minor vote-buying by a candidate and his supporters constituted a violation
that required the election in his district to be repeated.[7]
This result followed from a
provision in the National Parliament Electoral Provisions Act that provided,
“No election shall be valid if any corrupt or illegal practice is committed in
connection therewith by the candidate elected or his agent.”[8] Based on precedents, the Judge reasoned that
this subsection does not require that the action in question must have affected
the outcome of the election in order to lead to annulment. It was enough that the actions fell within
the offense of vote “bribery” contained in the law,[9] which would make them illegal even if not
“corrupt”. While it was necessary to consider whether the candidate had the
specific intent of influencing voters, the Judge indicated that the requisite
intent could be inferred on the basis of the circumstances.
The candidate had been observed to give a small
amount of money (SBD 50 = USD 7) each to about 10 persons who had paddled a
considerable distance to attend a campaign event; promised constituents that
300 solar panels would be delivered to them as an “expected outcome” of his
election; and had been responsible for a number of MP-3 music players being
distributed to voters. (Some of the
music players were subsequently reclaimed by persons associated with the candidate,
supposedly since the recipients had not voted for him.)
While these actions were not without
significance, the evidence of intent was not strong: The cash donations were not given subject to
an explicit quid pro quo. The promise to deliver solar units was
openly announced and not limited to supporters.
Similarly for the music players, which were actually given to voters in
advance of the election. The Judge
argued, however, that these factors had to be viewed in connection with the
customary gift-giving practices in the area, in which acceptance of a gift
entailed a corresponding obligation.
The Court ruled, therefore, that the candidate
had lost his mandate due to illegal actions and a new election would have to be
held. (Under the statutory scheme,
however, this led to the strange result that the candidate could run in the
by-election for the seat he had forfeited).
[1] In
one celebrated case, a local official was filmed threatening local
administration employees with loss of their jobs if there was not record a
strong vote in favor of his candidacy.
President Mikhail Saakashvili subsequently made a statement warning
against such practices, and the local official withdrew his candidacy. See OSCE/ODIHR
EOM Report, Georgia Parliamentary Elections,
2008, pp. 12-13.
[2] See
Romania, Presidential and Parliamentary Elections,
28 November and 12 December 2004, OSCE/ODIHR Assessment Mission Report (Warsaw, 14 February 2005),
p. 17.
[3] Georgia,
Unified Election Code (2008 ed.), Article 73.9[a]
[4] (In
neighboring Georgia,
the relevant provision applied to “citizens”, but gifts to communities
nonetheless continued. See OSCE/ODIHR
Final Reports, Georgian Special Presidential and Parliamentary Elections,
2008.)
[5] See Republic of Armenia,
Parliamentary Elections, 12 May 2007, Election Observation Mission
Final Report, pp. 12-13
[7] Ha’apio v. Hanaria, Civil Claim No. 343
(2010), Judgment (7 December 2011) (Opinion of Chetwynd, J.)
[8]
Solomon Islands, National Parliamentary Electoral Provisions (NPEP) Act, Sec.
66 (1). Under a different subsection,
Sec. 66(2), such a result would follow only if the corrupt or illegal practices
“ha[d] so extensively prevailed that they may be reasonably supposed to have
affected the result.” (Under that
subsection, the elected candidate would not only lose his parliamentary
mandate, but would be rendered ineligible to run again until the next general
election, and not in the by-election triggered by the loss of mandate.)
[9] Solomon Islands,
NPEP Act, Section 71
