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S. 1994 (112th): Deceptive Practices and Voter Intimidation Prevention Act of 2011

The text of the bill below is as of Dec 14, 2011 (Introduced).


II

112th CONGRESS

1st Session

S. 1994

IN THE SENATE OF THE UNITED STATES

December 14, 2011

(for himself, Mr. Cardin, and Mr. Leahy) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To prohibit deceptive practices in Federal elections.

1.

Short title

This Act may be cited as the Deceptive Practices and Voter Intimidation Prevention Act of 2011.

2.

Findings

Congress makes the following findings:

(1)

The right to vote by casting a ballot for one's preferred candidate is a fundamental right accorded to United States citizens by the Constitution, and the unimpeded exercise of this right is essential to the functioning of our democracy.

(2)

Historically, certain citizens, especially racial, ethnic, and language minorities, were prevented from voting because of significant barriers such as literacy tests, poll taxes, and property requirements.

(3)

Some of these barriers were removed by the 15th, 19th, and 24th Amendments to the Constitution.

(4)

Despite the elimination of some of these barriers to the polls, the integrity of today's elections is threatened by newer tactics aimed at suppressing voter turnout. These tactics include deceptive practices, which involve the dissemination of false information intended to prevent voters from casting their ballots, prevent voters from voting for the candidate of their choice, intimidate the electorate, and undermine the integrity of the electoral process.

(5)

Denials of the right to vote, and deceptive practices designed to prevent members of racial, ethnic, and language minorities from exercising that right, are an outgrowth of discriminatory history, including slavery. Measures to combat denials of that right are a legitimate exercise of congressional power under article I, section 4 and article II, section 1 of, and the 14th and 15th Amendments to, the United States Constitution.

(6)

Shortly before the 1990 midterm Federal elections, 125,000 voters in North Carolina received postcards providing false information about voter eligibility and a warning about criminal penalties for voter fraud. Ninety-seven percent of the voters who received postcards were African-American.

(7)

In 2004, Native American voters in South Dakota were prevented from voting after they did not provide photographic identification upon request, despite the fact that they were not required to present such identification in order to vote under State or Federal law.

(8)

In 2004, fliers were distributed in minority neighborhoods in Milwaukee, Wisconsin, falsely claiming, If you’ve already voted in any election this year, you can’t vote in the presidential election; If anybody in your family has ever been found guilty of anything, you can’t vote in the presidential election; If you violate any of these laws, you can get ten years in prison and your children will get taken away from you..

(9)

In 2004, in Franklin County, Ohio, a flyer was distributed urging voters of one political party to vote on Tuesday, Election Day, and voters of another political party to vote on Wednesday, the day after the election.

(10)

In the 2004 general election, in Allegheny County, Pennsylvania, a flyer was distributed noting that due to immense voter turnout Republicans should vote on Tuesday and Democrats should vote on Wednesday. The flyer thanked voters for cooperating with us in this endeavor to create a peaceful voting environment.

(11)

In the 2006 midterm election, 14,000 Latino voters in Orange County, California received mailings from the California Coalition for Immigration Reform, warning them in Spanish that if you are an immigrant, voting in a federal election is a crime that can result in incarceration … . In fact, an immigrant who is a naturalized citizen of the United States has the same right to vote as any other citizen.

(12)

In the same 2006 election, some Virginia voters received automated phone messages falsely warning them that the Virginia Elections Commission had determined they were ineligible to vote and that they would face severe criminal penalties if they tried to cast a ballot.

(13)

In 2006, in Maryland, certain campaigns for Governor and United States Senator distributed fliers in predominantly African-American neighborhoods falsely claiming that certain candidates had been endorsed by their opponents' party and by prominent figures who had actually endorsed the opponents of the candidates.

(14)

In 2008, Ohio residents reported receiving misleading automated calls giving voters incorrect information about the location of their polling places.

(15)

In the same year, fliers were distributed in predominantly African-American neighborhoods of Philadelphia, Pennsylvania, falsely warning that people with outstanding warrants or unpaid parking tickets could be arrested if they showed up at the polls on Election Day.

(16)

In the same year, messages were sent to users of the social media website Facebook falsely stating that the election had been postponed a day. Students at some universities, including Florida State University, received text messages saying the same thing.

(17)

In the same year, a local registrar of elections in Montgomery County, Virginia, issued two releases incorrectly warning that students at Virginia Tech who registered to vote at their college could no longer be claimed as dependents on their parents’ tax returns and could lose scholarships or coverage under their parents’ car and health insurance.

(18)

In the 2010 election, in African-American neighborhoods of Houston, Texas, a group called the Black Democratic Trust of Texas distributed flyers falsely warning that a straight-ticket vote for the Democratic Party would not count and that a vote just for a single Democratic candidate would count for the entire Democratic ticket.

(19)

In the 2010 election, in Maryland, a political consultant paid for robocalls on election night to thousands of African-American households that said, while the polls were still open, I'm calling to let everyone know that Governor O'Malley and President Obama have been successful. Our goals have been met. The polls were correct … We're okay. Relax. Everything is fine. The only thing left is to watch on TV tonight..

(20)

Those responsible for these and similar efforts should be held accountable, and civil and criminal penalties should be available to punish anyone who seeks to keep voters away from the polls by providing false information.

(21)

Moreover, the Federal Government should help correct such false information in order to assist voters in exercising their right to vote without confusion and to preserve the integrity of the electoral process.

(22)

The Federal Government has a compelling interest in protecting voters from confusion and undue influence and in preserving the integrity of its election process. Burson v. Freeman, 504 U.S. 191, 199 (1992).

(23)

The First Amendment does not preclude the regulation of some intentionally false speech, even if it is political in nature. As the Supreme Court of the United States has recognized, [t]hat speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected … . Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.. Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

3.

Prohibition on deceptive practices in Federal elections

(a)

Civil action

Subsection (b) of section 2004 of the Revised Statutes (42 U.S.C. 1971(b)) is amended—

(1)

by striking No person and inserting the following:

(1)

In general

No person

; and

(2)

by inserting at the end the following new paragraphs:

(2)

False statements regarding Federal elections

(A)

Prohibition

No person, whether acting under color of law or otherwise, shall, within 90 days before an election described in paragraph (5), by any means, including by means of written, electronic, or telephonic communications, communicate or cause to be communicated information described in subparagraph (B), or produce information described in subparagraph (B) with the intent that such information be communicated, if such person—

(i)

knows such information to be materially false; and

(ii)

has the intent to mislead voters, or the intent to impede, hinder, discourage, or prevent another person from exercising the right to vote in an election described in paragraph (5).

(B)

Information described

Information is described in this subparagraph if such information is regarding—

(i)

the time or place of holding any election described in paragraph (5); or

(ii)

the qualifications for or restrictions on voter eligibility for any such election, including—

(I)

any criminal penalties associated with voting in any such election; or

(II)

information regarding a voter's registration status or eligibility.

(3)

False statements regarding public endorsements

(A)

Prohibition

No person, whether acting under color of law or otherwise, shall, within 90 days before an election described in paragraph (5), by any means, including by means of written, electronic, or telephonic communications, communicate, or cause to be communicated, a materially false statement about an endorsement, if such person—

(i)

knows such statement to be false; and

(ii)

has the intent to mislead voters.

(B)

Definition of materially false

For purposes of subparagraph (A), a statement about an endorsement is materially false if, with respect to an upcoming election described in paragraph (5)—

(i)

the statement states that a specifically named person, political party, or organization has endorsed the election of a specific candidate for a Federal office described in such paragraph;

(ii)

such person, political party, or organization has not endorsed the election of such candidate; and

(iii)

such person, political party, or organization—

(I)

has publicly and explicitly stated that it supports the election of a different candidate for such Federal office in the election; or

(II)

has supported no candidate for such Federal office in the election.

(4)

Hindering, interfering with, or preventing voting or registering to vote

No person, whether acting under color of law or otherwise, shall corruptly hinder, interfere with, or prevent another person from voting, registering to vote, or aiding another person to vote or register to vote in an election described in paragraph (5).

(5)

Election described

An election described in this paragraph is any general, primary, run-off, or special election held solely or in part for the purpose of nominating or electing a candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, or Delegate or Commissioner from a district, territory, or possession.

.

(b)

Private right of action

(1)

In general

Subsection (c) of section 2004 of the Revised Statutes (42 U.S.C. 1971(c)) is amended—

(A)

by striking Whenever any person and inserting the following:

(1)

Whenever any person

; and

(B)

by adding at the end the following new paragraph:

(2)

Any person aggrieved by a violation of subsection (b)(2), (b)(3), or (b)(4) may institute a civil action for preventive relief, including an application in a United States district court for a permanent or temporary injunction, restraining order, or other order.

.

(2)

Conforming amendments

(A)

Subsection (e) of section 2004 of the Revised Statutes (42 U.S.C. 1971(e)) is amended by striking subsection (c) and inserting subsection (c)(1).

(B)

Subsection (g) of section 2004 of the Revised Statutes (42 U.S.C. 1971(g)) is amended by striking subsection (c) and inserting subsection (c)(1).

(c)

Criminal penalty

(1)

In general

Section 594 of title 18, United States Code, is amended—

(A)

by striking Whoever and inserting the following:

(a)

Intimidation

Whoever

;

(B)

in subsection (a), as inserted by subparagraph (A), by striking at any election and inserting at any general, primary, run-off, or special election; and

(C)

by adding at the end the following new subsections:

(b)

Deceptive acts

(1)

False statements regarding Federal elections

(A)

Prohibition

It shall be unlawful for any person, whether acting under color of law or otherwise, within 90 days before an election described in subsection (e), by any means, including by means of written, electronic, or telephonic communications, to communicate or cause to be communicated information described in subparagraph (B), or produce information described in subparagraph (B) with the intent that such information be communicated, if such person—

(i)

knows such information to be materially false; and

(ii)

has the intent to mislead voters, or the intent to impede, hinder, discourage, or prevent another person from exercising the right to vote in an election described in subsection (e).

(B)

Information described

Information is described in this subparagraph if such information is regarding—

(i)

the time or place of holding any election described in subsection (e); or

(ii)

the qualifications for or restrictions on voter eligibility for any such election, including—

(I)

any criminal penalties associated with voting in any such election; or

(II)

information regarding a voter's registration status or eligibility.

(2)

Penalty

Any person who violates paragraph (1) shall be fined under this title, imprisoned for not more than 5 years, or both.

(c)

Hindering, interfering with, or preventing voting or registering To vote

(1)

Prohibition

It shall be unlawful for any person, whether acting under color of law or otherwise, to corruptly hinder, interfere with, or prevent another person from voting, registering to vote, or aiding another person to vote or register to vote in an election described in subsection (e).

(2)

Penalty

Any person who violates paragraph (1) shall be fined under this title, imprisoned for not more than 5 years, or both.

(d)

Attempt

Any person who attempts to commit any offense described in subsection (a), (b)(1), or (c)(1) shall be subject to the same penalties as those prescribed for the offense that the person attempted to commit.

(e)

Election described

An election described in this subsection is any general, primary, run-off, or special election held solely or in part for the purpose of nominating or electing a candidate for the office of President, Vice President, presidential elector, Member of the United States Senate, Member of the United States House of Representatives, or Delegate or Commissioner from a district, territory, or possession.

.

(2)

Modification of penalty for voter intimidation

Section 594(a) of title 18, United States Code, as inserted and amended by paragraph (1), is amended by striking one year and inserting 5 years.

(3)

Sentencing guidelines

(A)

Review and amendment

Not later than 180 days after the date of enactment of this Act, the United States Sentencing Commission, pursuant to its authority under section 994 of title 28, United States Code, and in accordance with this section, shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of any offense under section 594 of title 18, United States Code, as amended by this section.

(B)

Authorization

The United States Sentencing Commission may amend the Federal Sentencing Guidelines in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987 (28 U.S.C. 994 note) as though the authority under that section had not expired.

(4)

Payments for refraining from voting

Subsection (c) of section 11 of the Voting Rights Act of 1965 (42 U.S.C. 1973i) is amended by striking either for registration to vote or for voting and inserting for registration to vote, for voting, or for not voting.

4.

Corrective action

(a)

Corrective action

(1)

In general

If the Attorney General receives a credible report that materially false information has been or is being communicated in violation of paragraphs (2) and (3) of section 2004(b) of the Revised Statutes (42 U.S.C. 1971(b)), as added by section 3(a), and if the Attorney General determines that State and local election officials have not taken adequate steps to promptly communicate accurate information to correct the materially false information, the Attorney General shall, pursuant to the written procedures and standards under subsection (b), communicate to the public, by any means, including by means of written, electronic, or telephonic communications, accurate information designed to correct the materially false information.

(2)

Communication of corrective information

Any information communicated by the Attorney General under paragraph (1)—

(A)

shall—

(i)

be accurate and objective;

(ii)

consist of only the information necessary to correct the materially false information that has been or is being communicated; and

(iii)

to the extent practicable, be by a means that the Attorney General determines will reach the persons to whom the materially false information has been or is being communicated; and

(B)

shall not be designed to favor or disfavor any particular candidate, organization, or political party.

(b)

Written procedures and standards for taking corrective action

(1)

In general

Not later than 180 days after the date of enactment of this Act, the Attorney General shall publish written procedures and standards for determining when and how corrective action will be taken under this section.

(2)

Inclusion of appropriate deadlines

The procedures and standards under paragraph (1) shall include appropriate deadlines, based in part on the number of days remaining before the upcoming election.

(3)

Consultation

In developing the procedures and standards under paragraph (1), the Attorney General shall consult with the Election Assistance Commission, State and local election officials, civil rights organizations, voting rights groups, voter protection groups, and other interested community organizations.

(c)

Authorization of appropriations

There are authorized to be appropriated to the Attorney General such sums as may be necessary to carry out this Act.

5.

Reports to Congress

(a)

In general

Not later than 180 days after each general election for Federal office, the Attorney General shall submit to Congress a report compiling all allegations received by the Attorney General of deceptive practices described in paragraphs (2), (3), and (4) of section 2004(b) of the Revised Statutes (42 U.S.C. 1971(b)), as added by section 3(a), relating to the general election for Federal office and any primary, run-off, or special election relating to the general election for Federal office held in the 2 years preceding the general election.

(b)

Contents

(1)

In general

Each report submitted under subsection (a) shall include—

(A)

a description of each allegation of a deceptive practice described in subsection (a), including the geographic location, racial and ethnic composition, and language minority-group membership of the persons toward whom the alleged deceptive practice was directed;

(B)

the status of the investigation of each allegation described in subparagraph (A);

(C)

a description of each corrective action taken by the Attorney General under section 4(a) in response to an allegation described in subparagraph (A);

(D)

a description of each referral of an allegation described in subparagraph (A) to other Federal, State, or local agencies;

(E)

a description of any civil action instituted under paragraph (2), (3), or (4) of section 2004(b) of the Revised Statutes (42 U.S.C. 1971(b)), as added by section 3(a), in connection with an allegation described in subparagraph (A); and

(F)

a description of any criminal prosecution instituted under section 594 of title 18, United States Code, as amended by section 3(c), in connection with the receipt of an allegation described in subparagraph (A) by the Attorney General.

(2)

Exclusion of certain information

(A)

In general

The Attorney General shall not include in a report submitted under subsection (a) any information protected from disclosure by rule 6(e) of the Federal Rules of Criminal Procedure or any Federal criminal statute.

(B)

Exclusion of certain other information

The Attorney General may determine that the following information shall not be included in a report submitted under subsection (a):

(i)

Any information which is privileged.

(ii)

Any information concerning an ongoing investigation.

(iii)

Any information concerning a criminal or civil proceeding conducted under seal.

(iv)

Any other nonpublic information that the Attorney General determines the disclosure of which could reasonably be expected to infringe on the rights of any individual or adversely affect the integrity of a pending or future criminal investigation.

(c)

Report made public

On the date that the Attorney General submits the report under subsection (a), the Attorney General shall also make the report publicly available through the Internet and other appropriate means.

6.

Severability

If any provision of this Act or any amendment made by this Act, or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the amendments made by this Act, and the application of the provisions and amendments to any person or circumstance, shall not be affected by the holding.