February 9, 2004
Civil Division – New Castle County
The Honorable Frank B. Calio
Commissioner of Elections
32 W. Loockerman Street, MI0l
Dover, DE 19904
Re: Valuable Thing Under Art. V, §7
Dear Commissioner Calio:
You have asked that we revisit an issue we first addressed in Atty. Gen. Op. 1W-083 in 1976. The issue raised at that time was whether the distribution of a flower was the offer of a "valuable thing as a compensation, inducement or reward" for the giving or withholding of a vote, prohibited by Article V, §7 of the Delaware Constitution. Under the specific facts then presented to us, we had concluded that the distribution of a flower did not represent the offer of a "valuable thing."
In Delaware's most recent election, the issue resurfaced. Prior to the election, you were asked to opine upon the propriety of the distribution of a flower on election day. On election day itself, there were one or more instances of food items being distributed close to polling places. The bright line test that we had attempted to identify in the 1976 opinion was proving to be unworkable in some instances. Accordingly, the question you ask is whether a flower, a food item or other object constitutes a "valuable thing" for purposes of Article V, §7 of the Delaware Constitution. We have reconsidered our 1976 opinion, and today we reach a different conclusion. We conclude that a flower, a food item or another object is “money or other valuable thing” as used in Article V, §7 of the Delaware Constitution. However, we conclude that the distribution of such objects is not necessarily a violation of Article V, §7 of the Delaware Constitution because there is not always evidence that the person making the distribution intends to compensate, induce or reward a voter for voting or not voting. Depending on the circumstances of an individual case, the distribution may have the purpose of publicizing a candidate and his/her views, not procuring votes. Whether a case would be treated as a violation of Article V, §7 of the Delaware Constitution would be based on the analysis set forth below.
Article V, §7 of the Delaware Constitution reads in relevant part:
Every person who either in or out of the State shall receive or accept, or offer to receive or accept, or shall pay, transfer or deliver, or offer or promise to pay, transfer or deliver, or shall contribute, or offer or promise to contribute, to another to be paid or used, any money or other valuable thing as a compensation, inducement or reward for the giving or withholding, or in any manner influencing the giving or withholding, a vote at any general, special, or municipal election in this State, or at any primary election, convention or meeting held for the purpose of nominating any candidate or candidates to be voted for at such general, special or municipal election … shall be deemed guilty of a misdemeanor…(emphasis added)
As is evident from this language, a violation of Article V, §7 of the Delaware Constitution involves two elements. First, the object being distributed must be “money or other valuable thing.” Second, the intent of the person making the distribution must be the giving or withholding of a vote. Each element requires a separate analysis.
No Delaware court has decided the meaning of "valuable thing" in connection with election bribery. However, courts in other jurisdictions have construed the words "valuable thing" or "thing of value" in such a context. Courts have ruled that the statutory intent behind the prohibition on offering a valuable thing to procure a vote is clear and unambiguous. See United Farm Workers of America, AFL-CIO v. Dutra Farms, Cal. App., 100 Cal. Rptr. 2d 251, 260 (2000) ("The United States Supreme Court has stated that 29 USC § 186 [prohibiting employers from giving things of value in connection with union elections] is ‘malum prohibitum which outlaws all payments [other than those set forth in certain stated exceptions], between employer and representatives.’”(citing United States v. Ryan, 350 U.S. 299, 305 (1956))); United States v. Silva, 517 F. Supp. 727, 734 (D. Rd. Island 1980) ("The courts have given meaning to the congressional intent [behind prohibition against giving a thing of value] by requiring a strict application of the statute."); United States v. Ryan, 232 F.2d 481,483 (2nd Cir. 1956) ("True, [the prohibition against giving things of value] then covers gifts, however trifling and innocuous…and Congress may well have wished to put a stop to the practice, even on occasions inconsiderable and harmless in themselves, rather than to make verbal distinctions that would be troublesome in application.") (emphasis added). Courts from jurisdictions other than Delaware have ruled that "value" is defined by reference to the recipient. In Scott v. State, Ohio Supr., 141 N.E. 19 (1923), the Supreme Court acknowledged,
It would defeat the plain purpose of the statute, if the meaning of the word "value" were to be so strictly limited that valuable things offered or received in cases of alleged bribery or solicitation of bribery should be held to be only things which are very generally desirable. It is impossible, of course, to establish value which is universal. On a desert island gold has no value, because no one desires it. Raw blubber has value as food at the north pole, but none in Ohio, because no one desires it. The test of the value must necessarily be the desire of some person or persons, not necessarily of most persons or all persons, for the thing in question.
ld. at 487.
Thus, the test for value is subjective, rather than objective. 12 Am. Jur. 2d, Bribery, § 1 0 ("A bribe must involve something of value that is used to influence the recipient's action or nonaction. Whether the thing involved has value is determined by the application of a subjective, rather than an objective, test, the requirement of value is satisfied if the thing has sufficient value in the mind of the person concerned so that his or her actions are influenced. Except under a statute that applies only to bribes over a certain minimum value, the government is not required to establish the exact value of bribe. Moreover, courts have consistently ruled that a thing has value if it influences the actions of just one person or some persons, not most or all persons. See Scott v. State, supra.
We apply these well-settled principles to analyze the first element of a violation of Article V, §7. The Delaware constitutional provision regarding “money or other valuable thing” is clear and unambiguous. It neither places a minimal limit on value nor excuses gifts of nominal value. Like courts that have addressed the issue, we conclude that if there is any value, no matter how trivial or token, to be attributed to a thing, the distribution of the thing to influence a vote violates Article V §7 of the Delaware Constitution. It is irrelevant that a single flower or an inexpensive item of food may not be considered an inducement to all, or even most voters. In our view, flowers, food, or other objects that are not strictly campaign literature constitute "money or other valuable thing" under Article V, §7 of the Delaware Constitution.
The second issue in the analysis of the violation of Article V, §7 involves the intent element. As we noted at the outset of this opinion, we do not believe that, in all cases, the distribution of objects such as flowers, pencils, and other inexpensive objects is an effort to buy votes. The purpose of the distribution may be to publicize a candidate and his/her platform. We find persuasive the reasoning advanced by the Supreme Court of Louisiana in its opinion on rehearing upholding a statute similar to the language of Article V, §7. That court wrote:
Contrary to our first impression, it is clear that a platform promise of better government, lower taxes, or welfare reform made generally to a group of voters or to individual voters is not bribery within the meaning of the statute. Similarly, handbills, buttons, pencils, and dinners are commonly accepted means of publicizing a candidate's name and qualifications, but neither do they violate the statute. Most, if not all, of these items confer no pecuniary benefit, are offered to voters generally, and most important, are offered with the intent to publicize a candidate and his views, not to buy a vote. The restriction achieved by the requirement of a corrupt intent to influence the recipient's vote effectively prevents the statute from infringing upon a candidate's freedom of expression. It also defeats any allegations of vagueness.
State v. Newton, La. Supr., 328 So. 2d 110, 118 (1976). The Office of the Attorney General of the State of Louisiana relied upon this language when it opined that the distribution of t-shirts and baseball caps would not violate a Louisiana statute containing language similar to Article V, §7. La. Atty. Gen. Op. 01-390 (October 25, 2001).
We conclude that there is a meaningful difference between the distribution of objects with the intent to procure votes and the distribution of objects with the intent to campaign. The former practice is illegal whereas the latter is not. We recognize that there is no bright line between these types of distributions. However, we believe there are factors that suggest whether a distribution is vote-buying in violation of Article V, §7. These factors include, inter alia, the value of the object being distributed and the timing and location of the distribution. As we wrote above, there is no de minimus exception to the language of Article V, §7 “money or other valuable thing.” However, the value of the object is relevant on the issue of intent—the distribution of expensive objects is more evidence of an intent to buy votes than the distribution of less expensive objects, which may more likely show an intent to campaign. The value of the object being distributed may also bear upon the issue whether a criminal prosecution is warranted. Second, the closer physically and temporally a distribution is made to the time that the recipient of the object is to vote, the more evidence there is of an intent to buy votes. For example, the distribution of an item outside of a polling place while the polls are open on election day may more likely evidence an intent to buy votes than the distribution of the same object during a fundraiser in advance of the election.
An evaluation of the facts of each case must be made to determine if a violation has occurred. As always, we stand ready to assist you in this or any other matter. Please do not hesitate to contact us if you have any questions.
Very truly yours,
A. Ann Woolfolk
Deputy Attorney General
Malcolm S. Cobin,
Cc: The Honorable M. Jane Brady
Philip Johnson, Opinion Coordinator