Voter fraud laws come in many varieties. In fact, in California, there are dozens of laws that deal with voter fraud as it arises in different contexts, including fraud by the voter, fraud by the collector and/or counter of votes, fraud by third persons attempting to interfere with another person’s voting rights, fraud by the person running for office, and more. With that said, this article deals mostly with the law, penalties, and defenses related to California Elections Code section 18560, which is voter fraud in the context of the voter’s action(s).
Voter Fraud Laws (EC 18560)
According to EC 18560, voter fraud can occur in the following situations:
When a person, who… “Not being entitled to vote at an election, fraudulently votes or fraudulently attempts to vote at that election” (EC 18560(a)).
When a person, who… “is entitled to vote at an election, votes more than once, attempts to vote more than once, or knowingly hands in two or more ballots folded together at that election (EC 18560(b)), or
When a person “Impersonates or attempts to impersonate a voter at an election (EC 18560(c)).
For example, a minor who attempts to vote in an election could be charged with a violation of EC 18560(a) [ineligible to vote]; a person who votes twice for a candidate in the same election could be charged with a violation of EC 18560(b) [multiple voting]; and a person who pretends to be someone else in order to vote could be charged with a violation of EC 18560(c) [impersonating another person in order vote].
Note: A person who is currently serving a prison sentence is not generally entitled to vote in a California election. Therefore, any prisoner attempting to vote by mail in a California election could be charged with a violation of EC 18560(a). This main-in voting restriction could also apply to persons serving a jail sentence for a felony or misdemeanor (as opposed to a state prison sentence).
Note: A person who impersonates another person in order to vote does not have to impersonate an actual living person in order for EC 18560(c) to apply.
Voter Fraud Penalties
EC 18560 crimes are considered “wobbler” crimes. This means that the district attorney could charge a misdemeanor violation of the law, or alternatively, a felony violation of the law. Whether or not the district attorney charges misdemeanor or felony charges in any wobbler crime, including voter fraud allegations, depends on many factors, including but not limited to, the following: the sophistication of the fraud, the harm caused to third person (if any), the criminal history of the defendant, the terms of any negotiated plea between the defendant’s attorney and the district attorney, the presence of any mitigating or aggravating factors, and more.
Jail Sentence: A felony violation of EC 18560(a)-(c) could result in jail term up to three years. This assumes the defendant is not granted a probation sentence, a suspended sentence, or a split jail sentence (see below). This three year jail term is the maximum sentence that may be imposed for a single violation of voter fraud under EC 18560. Other jail terms for a felony violation of EC 18560 crimes include: 16 month (low-term); 2 years (mid-term). A misdemeanor violation of EC 18560(a)-(c) could result in a jail sentence up to 1 year (maximum). Again, this misdemeanor maximum jail sentence assumes the judge does not grant the defendant a probation sentence with lesser time.
Probation Sentence: A probation sentence is period of supervision, as opposed to an actual jail sentence (with some exceptions). A probation sentence is not guaranteed in any voter fraud case; however, under certain conditions, a probation sentence is allowed in EC 18560 cases.
A probation sentence for EC 18560 comes with “terms of probation,” also called “conditions of probation.” These terms, or conditions, of probation generally include the payment of fines, work release or house arrest, community service, stay out of trouble (no misdemeanor or felony violation while on probation), stay away orders (restraining orders), and more. If the defendant violates these terms of probation then he could be sentenced on the conviction as though he was never granted probation (with some credit or any actual jail served while on probation, if any).
Also, sometimes a probation sentence will include a jail sentence as a term of probation. In other words, the defendant must be incarcerated despite the fact that he was granted probation. However, when a jail sentence is ordered as term of probation, the jail sentence is generally much shorter than the maximum jail sentence that the defendant could have served if he had not been granted probation, and that jail term may usually, but not always, be served alternatively on work release or house arrest.
Finally, a felony probation sentence for a violation of voter fraud charged under EC 18560 is called a formal probation sentence and that probation sentence is monitored by a probation officer. On the other hand, a misdemeanor probation sentence for a violation of voter fraud charged under EC 18560 is called informal probation and that informal probation is monitored by the court. For more information, see Misdemeanor v. Felony Probation.
PC 1170(h) Sentence: Voter fraud charged under EC 18560 is subject to California’s recent felony sentencing reenactment. Basically, this means that a person who is convicted of felony EC 18560 might be able to have any jail sentence split (incarceration served partially in jail and partially out of jail on work release or house arrest), or suspended (incarceration not served unless the defendant violates a condition of his out-of-custody post-release supervision). PC 1170(h) sentencing also means that any incarceration ordered after a violation of felony EC 18560 is served in a local county jail, as opposed to a California state prison. This is true even if the judge orders the maximum sentence of three years after a violation of EC 18560.
Work Release: Work release is a sentence of manual labor that include collecting garbage, usually around county jails and highways. Work release is a type of punishment that might be ordered as an alternative to jail regardless of whether or not the defendant is granted a probation sentence (see Probation Sentence above). Keep in mind that a work release sentence (or a house arrest sentence) is not guaranteed as an alternative to an actual jail sentence.
CIMT: Voter fraud is crime involving moral turpitude. A crime involving moral turpitude is just about any crime that alleges fraud, deceit, or is otherwise morally wrong. For purposes of penalties, a conviction for a crime involving moral turpitude, including voter fraud, carries collateral negative consequences, including immigration consequences (deportation from the US, denial of reentry into the US, and denial of naturalization to the US), military service consequences (denial of entry into the armed forces, discharged from the armed services, and more), professional or occupational license consequences (denial of license, loss of license, and more, for licensed professionals, i.e. doctor, dentist, lawyer teacher, therapist, nurse, etc.), reputation consequences, and more.
Bail: Bail is the payment of money, which is staked with the court as collateral, usually through a bail agent (bondsman), which is designed to ensure the defendant’s appearances in court if he is released from jail pending the criminal proceedings (other bail conditions may apply). If the defendant does not fulfill the conditions of bail then his bail may be forfeited and he may be remanded to the custody of the sheriff’s department during the pendency of the criminal proceedings. Bail is not a penalty of voter fraud or EC 18560; however, bail is the payment of money in order to be released from jail during the pendency of the criminal proceedings, therefore, bail is a quasi-penalty of any allegation of voter fraud under EC 18560.
Note: Voter fraud crimes, without violence or injury to another person, are not considered serious or violent felonies as though terms are defined at penal code sections 1192.7 and 667.5, respectively. This means that EC 18560 is not considered a “strike offense under California’s Three Strikes Sentencing Law.
Other Penalties: In addition to the possible jail sentence and other penalties listed above, any person convicted of voter fraud under EC 18560 could face additional penalties and punishments, including, but not limited to, the following: payment of fines and court fees, civil lawsuits, federal prosecution, loss of rights in family law court, restitution, violation of probation or parole terms for subsequent criminal activity, and more.
Note: The penalties for voter fraud charged under EC 18560 listed above assumes no other criminal charges or penalty enhancements are filed in the defendant’s case. For more information, see Criminal Penalty Enhancements). Also, when a person uses the U.S. mail to commit voter fraud (mail-in voting), then that person could be charged with federal mail fraud charges.
Voter Fraud Defenses
There is no particular defense that is particularly attached to any voter fraud allegation. This is because every voter fraud allegation is different. This is true even where the voter fraud allegation is the same. With that said, some defense tend to be more common with fraud allegations in general. These defenses include, but are not limited to, the following: mistake of fact, alibi, insufficient evidence to prove every element of the allegation, illegal search and seizure, coerced confession, insanity, and more (See Common Defenses to Crime).
For example, a person who honestly and reasonably believes that he is entitled to vote in an election, and thereafter votes in that election based on that reasonable, but mistaken belief, might be entitled to a dismissal of a EC 18560 allegation.
Also, a person charged with voter fraud under EC 18560 might be able to have those felony charges reduced to misdemeanor charges based on mitigating factors presented by the defendant’s attorney to the judge (or through plea bargaining with the district attorneys). Of course, this is not a true defense in the sense that the voter fraud allegations are dismissed, but rather, it’s a defense in the sense that the defendant’s exposure to enhanced jail and other penalties are avoided. Every case is different; therefore, whether or not felony EC 18560 criminal charges are reduced to misdemeanor charges depends on many factors (see above).
If you are charged with voter fraud, or a violation of California Elections Code section 18560(a)-(c), contact our criminal defense lawyers today for a free consultation. Our criminal defense lawyers have handled hundreds of misdemeanor and felony violation filed against defendants in the Inland Empire’s criminal courts, including Pomona, Riverside, San Bernardino, Rancho Cucamonga, Fontana, and more. Our criminal defense lawyers are available every day of the week to assist you. In some cases, we can travel to a local jail for a consultation for a small fee (West Valley Detention Center, Central Detention Center). Call today!
Note: There are other types of voter fraud not covered here, including, but not limited to, the following: voter fraud committed by person(s) who count and/or record votes, voter fraud by disclosure of a voter’s ballot choices by a member of a voter precinct board, voter fraud by tampering with voting machines, systems, or software, voter fraud by forging signatures or altering signatures on voter ballots, or producing false voter ballots, voter fraud by interfering with another person’s right to vote, or destroying ballots or ballot boxes, voter fraud by collecting voter ballots without authority, or adding or subtracting election ballots, voter fraud by altering postmark dates on election ballots, or purposefully delaying the delivering of election ballots, voter fraud by deceiving a person to vote for a person different than the voter’s choice, voter fraud by failure to timely deliver another person’s ballot when authorized to do so, voter fraud by accepting or offering money to vote for a particular candidate or ballot measure, voter fraud by threatening a voter, or the voter’s family, to vote for a particular candidate or ballot measure, voter fraud by altering voter returns, and more. Different voter fraud crimes carry different penalties.
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