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).