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.