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S 1994 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

S. 1994CommentsClose CommentsPermalink

To prohibit deceptive practices in Federal elections.CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

December 14, 2011CommentsClose CommentsPermalink

Mr. SCHUMER (for himself, Mr. CARDIN, and Mr. LEAHY) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

To prohibit deceptive practices in Federal elections.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS.

Congress makes the following findings:CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(3) Some of these barriers were removed by the 15th, 19th, and 24th Amendments to the Constitution.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.’.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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’.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





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





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.’.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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).CommentsClose CommentsPermalink





(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).CommentsClose CommentsPermalink

SEC. 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--CommentsClose CommentsPermalink





(1) by striking ‘No person’ and inserting the following:CommentsClose CommentsPermalink





‘(1) IN GENERAL- No person’; andCommentsClose CommentsPermalink





(2) by inserting at the end the following new paragraphs:CommentsClose CommentsPermalink





‘(2) FALSE STATEMENTS REGARDING FEDERAL ELECTIONS-CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(i) knows such information to be materially false; andCommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(B) INFORMATION DESCRIBED- Information is described in this subparagraph if such information is regarding--CommentsClose CommentsPermalink





‘(i) the time or place of holding any election described in paragraph (5); orCommentsClose CommentsPermalink





‘(ii) the qualifications for or restrictions on voter eligibility for any such election, including--CommentsClose CommentsPermalink





‘(I) any criminal penalties associated with voting in any such election; orCommentsClose CommentsPermalink





‘(II) information regarding a voter’s registration status or eligibility.CommentsClose CommentsPermalink





‘(3) FALSE STATEMENTS REGARDING PUBLIC ENDORSEMENTS-CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(i) knows such statement to be false; andCommentsClose CommentsPermalink





‘(ii) has the intent to mislead voters.CommentsClose CommentsPermalink





‘(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)--CommentsClose CommentsPermalink





‘(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;CommentsClose CommentsPermalink





‘(ii) such person, political party, or organization has not endorsed the election of such candidate; andCommentsClose CommentsPermalink





‘(iii) such person, political party, or organization--CommentsClose CommentsPermalink





‘(I) has publicly and explicitly stated that it supports the election of a different candidate for such Federal office in the election; orCommentsClose CommentsPermalink





‘(II) has supported no candidate for such Federal office in the election.CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink





(b) Private Right of Action-CommentsClose CommentsPermalink





(1) IN GENERAL- Subsection (c) of section 2004 of the Revised Statutes (42 U.S.C. 1971(c)) is amended--CommentsClose CommentsPermalink





(A) by striking ‘Whenever any person’ and inserting the following:CommentsClose CommentsPermalink





‘(1) Whenever any person’; andCommentsClose CommentsPermalink





(B) by adding at the end the following new paragraph:CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink





(2) CONFORMING AMENDMENTS-CommentsClose CommentsPermalink





(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)’.CommentsClose CommentsPermalink





(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)’.CommentsClose CommentsPermalink





(c) Criminal Penalty-CommentsClose CommentsPermalink





(1) IN GENERAL- Section 594 of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(A) by striking ‘Whoever’ and inserting the following:CommentsClose CommentsPermalink





‘(a) Intimidation- Whoever’;CommentsClose CommentsPermalink





(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’; andCommentsClose CommentsPermalink





(C) by adding at the end the following new subsections:CommentsClose CommentsPermalink





‘(b) Deceptive Acts-CommentsClose CommentsPermalink





‘(1) FALSE STATEMENTS REGARDING FEDERAL ELECTIONS-CommentsClose CommentsPermalink





‘(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--CommentsClose CommentsPermalink





‘(i) knows such information to be materially false; andCommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(B) INFORMATION DESCRIBED- Information is described in this subparagraph if such information is regarding--CommentsClose CommentsPermalink





‘(i) the time or place of holding any election described in subsection (e); orCommentsClose CommentsPermalink





‘(ii) the qualifications for or restrictions on voter eligibility for any such election, including--CommentsClose CommentsPermalink





‘(I) any criminal penalties associated with voting in any such election; orCommentsClose CommentsPermalink





‘(II) information regarding a voter’s registration status or eligibility.CommentsClose CommentsPermalink





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





‘(c) Hindering, Interfering With, or Preventing Voting or Registering To Vote-CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





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





‘(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.CommentsClose CommentsPermalink





‘(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.’.CommentsClose CommentsPermalink





(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’.CommentsClose CommentsPermalink





(3) SENTENCING GUIDELINES-CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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’.CommentsClose CommentsPermalink

SEC. 4. CORRECTIVE ACTION.

(a) Corrective Action-CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(2) COMMUNICATION OF CORRECTIVE INFORMATION- Any information communicated by the Attorney General under paragraph (1)--CommentsClose CommentsPermalink





(A) shall--CommentsClose CommentsPermalink





(i) be accurate and objective;CommentsClose CommentsPermalink





(ii) consist of only the information necessary to correct the materially false information that has been or is being communicated; andCommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(B) shall not be designed to favor or disfavor any particular candidate, organization, or political party.CommentsClose CommentsPermalink





(b) Written Procedures and Standards for Taking Corrective Action-CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 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.CommentsClose CommentsPermalink





(b) Contents-CommentsClose CommentsPermalink





(1) IN GENERAL- Each report submitted under subsection (a) shall include--CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





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





(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);CommentsClose CommentsPermalink





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





(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); andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(2) EXCLUSION OF CERTAIN INFORMATION-CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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):CommentsClose CommentsPermalink





(i) Any information which is privileged.CommentsClose CommentsPermalink





(ii) Any information concerning an ongoing investigation.CommentsClose CommentsPermalink





(iii) Any information concerning a criminal or civil proceeding conducted under seal.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 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.CommentsClose CommentsPermalink