Second Circuit Criminal Law Blog

Circuit Affirms Convictions Arising Out of Scheme to Manipulate Local Elections

To protect the integrity of federal elections, Congress has passed a variety of laws directed at the election process, including those criminalizing fraudulent voter registration and voter bribery.  Due to the overlapping nature of our election system, those federal laws will often impact state elections, leading some defendants to argue that Congress overstepped its bounds.  Such an argument was recently made, and rejected, in United States v. Smilowitz (Walker, Parker, Carney). 


The defendant, Volvy “Zev” Smilowitz, was involved in a real estate development project to house thousands of Hasidic Jewish families in Bloomingburg, New York, a small village in Sullivan County of less than five hundred people.  Hoping to avoid objections based on the likelihood that the religious community would be able to control local government decisions, Smilowitz and his business associates, Shalom Lamm and Kenneth Nakdimen, kept the nature and scope of the project a secret for nearly half a decade.  By 2013, however, residents learned the truth and the village halted development.

In response, Smilowitz and his associates sought to replace the village’s elected officials with persons sympathetic to their cause, including one non-resident whom they helped to get on the ballot by falsely registering a village address in his name.  They also used their public relations firm to register more than one hundred new voters using certifications that falsely represented their residence status.  This scheme did not go undetected, and Bloomingburg residents sued to invalidate the new registrations.  While the civil litigation proceeded, federal agents executed search warrants on the sham residences.  Ultimately the scheme failed and the incumbent mayor won reelection.

Smilowitz, Lamm, and Nakdimen were indicted for conspiring to submit false voter registrations, buy voter registrations, and pay bribes for voter registrations and votes, in violation of 52 U.S.C. § 10307(c) of the federal election statute; the Travel Act, 18 U.S.C. § 1952; and the general federal conspiracy statute, 18 U.S.C. § 371.  Smilowitz moved to dismiss the indictment, arguing, inter alia, that the federal election statute did not apply because his conduct was tied to a local election, and the Travel Act did not apply because buying voter registrations is not bribery under New York’s bribery statute.  The district court denied the motion, and Smilowitz pled guilty on all counts.

The Decision

The Court of Appeals affirmed.[1]  As to the federal election statute, the Court agreed with Smilowitz that Section 10307(c) does not reach “pure” state elections or registration for the same.  In so doing, the court rejected the government’s argument that the statute reaches pure state registrations (as opposed to elections), relying on the plain terms of the statute.  The Court further reasoned that the government’s proposed reading violated principles of federalism, which prohibit Congress from regulating purely state or local election processes.  Op. at 11.

Nonetheless, Smilowitz’s conduct was within the scope of the statute, and subject to regulation by Congress, because New York’s election system registration is “unitary,” entitling an individual to vote in all local, state, and federal elections, and registration “permanently qualifies” an individual to vote in any such election.  Op. at 8, 13.  Although the voter registrations at issue were intended to allow individuals to vote in the purely local Bloomingburg elections, they enabled the individuals to vote in, and thus had the potential to affect the integrity of, future federal elections as well.  By fraudulently registering individuals to vote under New York’s unitary and permanent registration system, Smilowitz had “exposed future federal elections to corruption.”  Op. at 13.  The Court dismissed Smilowitz’s federalism concerns based on the fact that unitary registration is used in the overwhelming majority of states, reasoning that the federal government still has a valid interest, and states are free to modify their local election laws to have a separate registration process for purely state and/or local elections.  The Court observed that several other Circuits have reached the same conclusion:  that the potential to affect the integrity of a federal election is sufficient for this statute to apply.

As to the Travel Act, the Court held that the New York state offense to which Smilowitz pled guilty, New York Election Law § 17-142, constituted “bribery” within the statute.  The Court rejected Smilowitz’s contention that his violation of Section 17-142 could not be bribery under the Travel Act because it does not fall within New York’s bribery statutes, which require the payee to be a “public servant.”  Bribery under the Travel Act has for many decades received a broad, generic meaning, which has long reached bribery of voters, rather than a narrow or technical definition.

Our Analysis

In an election year in which there are concerns about the integrity of the process, Smilowitz is an encouraging reminder that, although federal election law is not perfect in scope of execution, it can prevent and punish election fraud.  Moreover, these federal protections will often indirectly protect state and local election processes, particularly where there is overlap between the two. 

Smilowitz is also surely right on the merits.  Congress is expressly empowered through Article I, Section 4 of the Constitution to regulate the “Times, Places and Manner of holding Elections for” federal officials, and it has the power to enact all laws necessary and proper for carrying out that aim.  Congress must have the ability to criminalize conduct, like fraudulent registration under a unitary registration system, to be able to protect the integrity of federal elections—even if that means Congress will criminalize some conduct that affects state elections as a result.  Just as Congress’s power to regulate federal elections is not nullified because a State chooses to hold its local elections at the same time and place as federal elections, see, e.g., Ex Parte Siebold, 100 U.S. 371, 393 (1879), so Congress’s power to regulate federal registration ought not be nullified because a State chooses to adopt a singular registration process for federal and local elections. 

To be sure, Congress could have adopted narrower legislation that would minimize its impact on state and local elections, for instance by including in the election statute a requirement that the conduct be made with the intent of affecting federal elections.  But it was not required to do so, and it chose instead to enact broader protections for federal elections.  That is ultimately a good thing.  No doubt Smilowitz and his co-conspirators intended to affect the Bloomingburg election, but their fraudulent actions put the integrity of the federal election process at risk as well, and the government should not be required to wait until that process is actually undermined by such conduct.  Smilowitz’s argument that he should walk free because he “only” intended to corruptly influence the outcome of a local election is lacking in both surface appeal and legal persuasiveness.  


[1] The Court declined to address the jurisdictional question whether Smiley’s appeal was barred by his guilty plea, or whether it was permitted under Class v. United States, 138 S. Ct. 798 (2018), finding no merit to his arguments in any event.  In general, a guilty plea waives all non-jurisdictional defects in the case, absent a conditional plea, which requires the consent of the court and the government.  See Fed. R. Crim. P. 11 (a)(2) (“With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion.  A defendant who prevails on appeal may then withdraw the plea.”).