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When Voter Fraud Was Real

Conspiracies to affect the outcome of elections is not a new thing. Shortly after the Civil War, which - to clarify - was a war in which the Union prevailed, abolished slavery, granted birthright citizenship, and prohibited interference with people's right to vote. That war involved rebels (who are now falsely glorified as some sort of heroes fighting for a genteel way of life - in fact, they were traitors) who rose up against their elected government in armed rebellion because they wanted to keep their appalling economic advantage of a slave economy and artificially inflated influence in federal elections. The course of that war was bloody and deadly with hundreds of thousands of young people killed and - finally - the rebels were defeated, slavery abolished, and the union preserved with some amendments to the governing documents. We decided, as a nation, that slavery was bad, that voting was good, and that citizens of all races should have a say in who represents them in government. It seems shocking that we need to remind folks of these facts, but here we are 160 years or so later doing just that.

Anyway - after the Civil War, Congress passed some federal laws to ensure that the spirit and letter of the 14th and 15th Amendments would not obliterate votes by newer voters. And, by “newer voters” I mean formerly enslaved people. Laws, like Amendments, are not self-executing. Therefore, when officials, predictably, sought to ignore the legitimate ballots of entire precincts, federal prosecutors stepped in. See, i.e. United States v. Mosley, 238 U.S. 383 (1915); United States v. Saylor, 322 U.S. 385 (1944). As a rule, the cases involved votes and voters in federal elections.

Fifty years ago, however, events in Logan County, West Virginia raised a new question. When officials there conspired with the son of the County Commissioner to cast false votes in a hotly contested primary, they tried to cover their tracks by also casting false votes for their United States Senator and Congressman (who were not challenged in the primary). The question was whether a violation of the federal statute occurred if the conspiracy did not affect the outcome of that race and where the underlying conspiracy was only to affect a local race?

A little background - a “slate ballot” is a group of individuals, usually of the same party, who agree more-or-less on the issues. They support each other and may even campaign together or for one another. In Logan County, West Virginia in the 1970’s, most folks were Democrats. But, they did not always agree on issues. So, in this exciting moment in time, there was a slate of candidates for various offices aligned with the incumbent County Commissioner, Okey Hager (yep, that’s his real name), and a different slate, again all Democrats, aligned with his chief rival, Neil Scaggs. So, there was a “Hager Slate” and a “Scaggs Slate”. However, both slates included the same people for Congress, Hechler, and for United States Senate, Byrd.

The hottest contest was between Hager and Scaggs. The contests were less contentious down ballot and up ballot. Indeed, the candidates for United States Senate and for Representative in Congress were not challenged in the primary. So, Okey’s son, Red (yep, that’s also his real name) conspired with election officials to cast false “slate ballots” in the primary. Not only did this artificially inflate the votes for Okey Hager, but also for the other candidates on the slate including the unchallenged federal candidates. After the votes were counted, Hager eked out a win in the primary. Scaggs challenged the outcome of the election. In the course of the challenge, some of Red’s co-conspirators committed perjury at a hearing. This must have prompted a federal review because the federal trial then used these perjured statements against the other co-conspirators in their federal trial. But, it's unclear because there is so little background information available in this matter (which is really frustrating because it's pretty interesting stuff).

The questions the Supreme Court opinion addressed were whether the federal statute applied where the conspiracy involved only local offices and, if such a conspiracy could be prosecuted under the federal statute, whether it was error to use perjured statements as evidence in furtherance of such conspiracy against other defendants. Thurgood Marshall wrote the majority opinion.

The opinion states that – yes – where false votes were cast for federal candidates, even when uncontested in a primary where those votes would not impact the outcome, those false votes violated the federal statute. More significantly, those false votes were integral to the conspiracy itself – the plan to dilute the votes of the citizens of the county by increasing the slate ballots for Hager. If they only cast fake votes for Hager, it would raise suspicion. Therefore, the conspirators increased votes for the entire slate so as not to arouse suspicion. These fake votes did materially affect the outcome of the County Commissioner primary even if it did not materially affect the uncontested primary for the federal office holders seeking re-election.

"Every voter in a federal primary election, whether he votes for a candidate with little chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes.” Anderson v. United States, 417 U.S. 211, 227 (1974). The conspiracy to cast entire slates of false votes necessarily cast false votes for federal candidates even if the intent was to affect the local race.

The opinion also reminds everyone of the definition of hearsay: an out of court statement introduced to prove the truth of the statement. In this case, the out of court statement was perjured testimony admitted not to prove its truth – but, contrarily, to demonstrate its falsehood and thereby strengthen the case that this was a conspiracy to add fake votes for Hager even if this also added fake votes for other candidates. So, the claim that the trial court allowed inadmissibile hearsay was simply misplaced.

In the end, the Court upheld the convictions finding a violation of the federal statute because false votes were cast for federal candidates even if they did not affect the outcome. The dissenting opinion claiming that the point of the conspiracy only affected the local commissioner race and the jury instructions so averred and therefore the federal statute did not apply. Honestly, it’s a great argument and very persuasive when it comes to criminal cases which should be strictly construed. Apologies to the great Justice Douglas in his sound reasoning and to his partner in dissent, the brilliant Justice Brennan, but for our purposes today, we will ignore it and just stick with the majority.

In my cursory research I did not find newspaper articles about this, whether the case required a new election, whether Neal Scaggs ever became County Commissioner. I am not sure if this is the same Neal Scaggs who died in 2021 – there is no mention of this contentious race in his obituary - but the dates match up. I could not really find anything about Okey Hager either, although I am sure information exists. The Court of Appeals decision does not go deeply into the facts, so we are left with the ones the Supreme Court found necessary to recite in both the majority and dissenting opinions. These facts paint an ugly picture of a deeply corrupt election system. To be fair - it is not at all clear that this ballot box stuffing case had anything to do with racism or bias - it appears that it was really just about holding on to power. It seems that the feds got involved presenting a bulwark against local corruption.

Although he did not argue the case before the Supreme Court, the prosecutor in this matter was an Assistant United States Attorney named Robert King. He argued the matter before the Court of Appeals for the Fourth Circuit, defending the prosecution of this federal crime of election fraud. Decades later, he was introduced to members of the judiciary committee by the same Senator who was on the ballot who received extra votes in that uncontested race. Senator Byrd recounted how he came to know Robert King over the years and what a genuinely good person he was. This introduction was for Robert King’s nomination by President Bill Clinton to sit as a member of the Court of Appeals for the Fourth Circuit. The Senate approved. Judge King still sits on the Fourth Circuit today. And the issue of voter fraud, election interference, and dilution of votes is still in the news.

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