[House Report 110-101]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-101
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DECEPTIVE PRACTICES AND VOTER INTIMIDATION PREVENTION ACT OF 2007
_______
April 18, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 1281]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1281) to amend title 18, United States Code, to
prohibit certain deceptive practices in Federal elections, and
for other purposes, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 4
Committee Oversight Findings..................................... 6
New Budget Authority and Tax Expenditures........................ 6
Congressional Budget Office Cost Estimate........................ 6
Performance Goals and Objectives................................. 8
Constitutional Authority Statement............................... 8
Advisory on Earmarks............................................. 8
Section-by-Section Analysis...................................... 8
Changes in Existing Law Made by the Bill, as Reported............ 8
Additional Views................................................. 10
The Amendment
The amendment (stated in terms of the page and line numbers
of the introduced bill) is as follows:
Page 2, line 10, strike ``within 60 days''.
Purpose and Summary
H.R. 1281, the ``Deceptive Practices and Voter Intimidation
Prevention Act of 2007,'' will prohibit and punish deceptive
practices committed with the intent to prevent another person
from voting. The bill increases monetary and criminal penalties
for deceptive practices and voter intimidation in Federal
elections. Significantly, H.R. 1281 requires the Attorney
General to respond appropriately to practices that deceive and
intimidate voters, such as by ensuring that accurate
information is provided to voters to counter any such
practices, and referring evidence of such practices to the
appropriate Federal and State authorities for prosecution or
civil action after the election.
Background and Need for the Legislation
At the core of our democracy is the right to vote.
Historically, however, the right to vote has been denied on the
basis of race, color, gender, and other characteristics. Voting
rights have been extended through the 15th, 19th, and 24th
amendments to the U.S. Constitution, as well as the Voting
Rights Act. \1\ Unfortunately, voter suppression schemes still
interfere with the exercise of those rights. By increasing
monetary and criminal penalties, and directing the Attorney
General to respond appropriately, H.R. 1281 will help deter
voter suppression schemes, an important step in ensuring
overall integrity of our election system.
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\1\ 42 U.S.C.A. Sec. Sec. 1973 et. seq. (2006).
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Instances of deceptive practices and voter intimidation in
recent election cycles are well documented. \2\ Among them: In
2002, flyers stating voters could cast their ballots 3 days
after the election ``if the weather is bad'' were distributed
in New Orleans public housing complexes. \3\ In 2004, just
weeks before the presidential election, some Lake County voters
in Ohio received letters, printed on falsified Lake County
Board of Elections letterhead, informing them that their
registrations were illegal and that they would be unable to
vote. \4\ Also in 2004, voters in Milwaukee's African American
neighborhoods received flyers from the fictional ``Milwaukee
Black Voters League'' falsely claiming that individuals could
be found ineligible to vote due to traffic violations, the
criminal records of family members, or voting in a previous
election during the year. \5\
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\2\ See e.g., People For the American Way & National Association
for the Advancement of Colored People, The Long Shadow of Jim Crow:
Voter Intimidation and Suppression in America Today (Dec. 2004),
available at http://www.pfaw.org/pfaw/dfiles/file--462.pdf; Demos,
Challenges to Fair Elections: Voter Intimidation and Vote Suppression,
(Nov. 2006), available at http://www.demos.org/pubs/CFE--
votersuppress--110106.pdf.
\3\ Lee Hockstader & Adam Nossiter, GOP Outmaneuvered in La.
Runoff, Wash. Post, Dec. 9, 2002, at A4.
\4\ Jeff Maynor, Phony Letters Tell People They Cannot Vote, WKYC-
TV, Oct. 28, 2004, available at http://www.wkyc.com/news/news--
print.asp?id=25556.
\5\ Jo Becker & David Finkel, Now They're Registered, Now They're
Not, Wash. Post, Oct. 31, 2004, at A22.
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The civil rights and voting rights communities are rightly
concerned about these continued efforts to disenfranchise
eligible voters. Hilary Shelton, Director of the National
Association for the Advancement of Colored People (NAACP)
Washington Bureau has noted that ``some people are still so
desperate to win elections . . . that they resort to deceptive
practices, misinformation and lies.'' \6\ Ralph Neas, President
and CEO, People for the American Way, has observed that ``[t]he
complexity and sophistication of voter intimidation and
suppression tactics has grown'' and that ``[t]he 2006 elections
provided prime examples of these new forms of suppression
techniques, and dirty tricks were as pervasive and brazen as
ever.'' \7\ Barbara Arnwine, Executive Director of the Lawyer's
Committee for Civil Rights Under Law, agreed that ``[s]ince the
2000 election cycle, it has become clear that deceptive
practices and voter intimidation remain a key civil rights
issue because these cynical attempts to influence election
results are primarily targeted at traditionally disenfranchised
voters.'' \8\
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\6\ Protecting the Right to Vote: Election Deception and
Irregularities in Recent Federal Elections: Hearing Before the H. Comm.
on Judiciary, 110th Cong. (2007) [hereinafter House Hearing] (statement
of Hilary Shelton, Director, NAACP Washington Bureau).
\7\ Id. (statement of Ralph Neas, President and CEO, People for the
American Way).
\8\ Press Release, Lawyers' Committee for Civil Rights Under Law,
Lawyers' Committee Strongly Supports Bill to Prevent Voter Intimidation
and Deceptive Practices (Jan. 31, 2007).
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2006 MIDTERM ELECTION
At the time of the 2006 election, some voters in Virginia
received messages from callers on behalf of the non-existent
``Virginia Elections Commission.'' The callers gave incorrect
voter registration information, and told the voters that they
might be ineligible to vote. \9\ Some Virginians also received
phone calls instructing them to vote by phone. Call recipients
were told to indicate their candidate of choice by pressing a
number and the call ended with a message that voting was
complete and there was no need to go to the polls. \10\
Deceptive practices involving ``information regarding a voter's
registration status and eligibility'' and ``the time, place, or
manner of conducting the election'' are prohibited under H.R.
1281. \11\
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\9\ Kelli Arena & Ronni Berke, FBI launches probe of Virginia pre-
election calls, CNN, Nov. 7, 2006, available at http:www.cnn.com/2006/
POLITICS//11/07/deceptivecalls.va/index/html.
\10\ House Hearing, supra note 6 (statement of Hilary Shelton,
Director, NAACP Washington Bureau).
\11\ H.R. 1281, 110th Cong. (2007).
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Also in 2006, eligible Latino voters in Orange County,
California, received mailings from the ``California Coalition
for Immigration Reform,'' falsely warning them in Spanish that
``if you are an immigrant, voting in a Federal election is a
crime that can result in incarceration.'' \12\ Congresswoman
Loretta Sanchez, whose constituents received such letters, told
the Committee that ``[f]amilies were afraid that their personal
information would be shared with anti-immigration groups if
they voted. They were afraid of retaliation for casting their
vote.'' \13\ Deceptive practices involving false information
regarding ``any criminal penalties associated with voting in
the election'' are prohibited under H.R. 1281. \14\
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\12\ Sonya Geis, Calif. Campaign in Turmoil Over Letters, Wash.
Post, Oct. 20, 2006, at A4.
\13\ House Hearing, supra note 6 (statement of Congresswoman
Loretta Sanchez).
\14\ H.R. 1281, 110th Cong. (2007).
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Also in 2006, certain candidates in Maryland distributed
fliers in predominantly African-American neighborhoods that
falsely claimed that the candidates had been endorsed by their
opponents' party and by prominent African American figures.
\15\ Senator Ben Cardin testified that such literature was
``clearly designed to mislead African American voters, who have
a legal right to vote and pick the candidate of their choice,''
and therefore that it ``was rightfully denounced by civil
rights groups as a voter suppression and intimidation effort.''
\16\ Deceptive practices involving ``the explicit endorsement
by any person or organization of a candidate running for any
office voted on in the election'' are prohibited under H.R.
1281. \17\
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\15\ Ernesto Londono, Sample Ballots in Pr. George's Misidentify
Candidates, Wash. Post, Nov. 7, 2006.
\16\ House Hearing, supra note 6 (statement of U.S. Senator Ben
Cardin).
\17\ H.R. 1281, 110th Cong. (2007).
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Hearings
The full Committee on the Judiciary held 1 day of hearings
on H.R. 1281 on March 7, 2007. Testimony was received from the
Honorable Barack Obama, U.S. Senator from Illinois; the
Honorable Benjamin Cardin, U.S. Senator from Maryland; the
Honorable Loretta Sanchez, U.S. Representative for the 47th
Congressional District of California; the Honorable Brian
Bilbray, U.S. Representative for the 50th Congressional
District of California; the Honorable Steve King, U.S.
Representative for the 5th Congressional District of Iowa; the
Honorable Rahm Emanuel, U.S. Representative for the 5th
Congressional District of Illinois; Donna L. Brazile,
Democratic National Committee Voting Rights Institute Chair and
Georgetown University Adjunct Professor; Eve Sandberg, Oberlin
College Associate Professor of Politics; Ralph G. Neas, People
for the American Way President and CEO; and a written statement
was received from John Fund, columnist at the Wall Street
Journal.
Committee Consideration
On March 29, 2007, the Committee met in open session and
ordered the bill H.R. 1281 favorably reported, as amended, by
voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall votes occurred during the Committee's
consideration of H.R. 1281.
1. An amendment offered by Mr. Smith on behalf of Mr.
Chabot, prohibiting deceptive practices that prevent another
person from ``effectively'' exercising the right to vote. The
amendment failed by a vote of 9 to 17.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Ms. Sanchez..................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Gutierrez...................................................
Mr. Sherman..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Davis....................................................... X
Ms. Wasserman Schultz...........................................
Mr. Ellison..................................................... X
Mr. Smith (Texas)...............................................
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Chabot......................................................
Mr. Lungren.....................................................
Mr. Cannon...................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks......................................................
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
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Total....................................................... 9 17
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2. A motion to table the challenge to the Chairman's ruling
that an amendment regarding non-citizens voting offered by Mr.
Forbes was non-germane. The motion to table passed by a vote of
13 to 10.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
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Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Sanchez..................................................... X
Mr. Cohen....................................................... X
Mr. Johnson.....................................................
Mr. Gutierrez...................................................
Mr. Sherman.....................................................
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Davis....................................................... X
Ms. Wasserman Schultz...........................................
Mr. Ellison..................................................... X
Mr. Smith (Texas)...............................................
Mr. Sensenbrenner, Jr...........................................
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Chabot......................................................
Mr. Lungren..................................................... X
Mr. Cannon......................................................
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
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Total....................................................... 13 10
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1281, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 11, 2007.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1281, the
Deceptive Practices and Voter Intimidation Prevention Act of
2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 1281--Deceptive Practices and Voter Intimidation Prevention Act of
2007.
CBO estimates that implementing H.R. 1281 would cost less
than $500,000 annually from appropriated funds. Enacting the
bill could affect direct spending and revenues, but CBO
estimates that any such effects would not be significant.
Section 4 of the Unfunded Mandates Reform Act excludes from
the application of the act any legislative provisions that
enforce the constitutional rights of individuals. CBO has
determined that H.R. 1281 would fall within that exclusion
because it would protect voting rights. Therefore, CBO has not
reviewed the bill for mandates.
H.R. 1281 would establish a new crime for attempting to
deceive voters in federal elections and would require the
Department of Justice to issue regulations and prepare reports
relating to implementation of the bill's provisions. Because
the legislation would establish a new offense, the government
would be able to pursue cases that it otherwise would not be
able to prosecute. CBO expects that H.R. 1281 would apply to a
relatively small number of offenders, however, so any increase
in costs for law enforcement, court proceedings, or prison
operations would not be significant. We estimate that it would
cost less than $500,000 annually to implement this legislation,
including costs to prepare the reports and regulations required
by the bill. Any such costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under H.R. 1281
could be subject to criminal fines, the federal government
might collect additional fines if the legislation is enacted.
Criminal fines are recorded as revenues, then deposited in the
Crime Victims Fund and later spent. CBO expects that any
additional revenues and direct spending would not be
significant because of the small number of cases likely to be
affected.
The CBO staff contact for this estimate is Mark Grabowicz,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
1281, will provide the District of Columbia with full
representation in the U.S. House of Representatives.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 4, clause 1.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1281 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title. Section 1 sets forth the short
title of the Act as the ``Deceptive Practices and Voter
Intimidation Prevention Act of 2007.''
Section 2. Prohibition on Deceptive Practices in Federal
Elections. Section 2 defines deceptive practices as knowingly
communicating false information with the intent to prevent
another from voting. It also prohibits such deceptive practices
as felonies subject to fines up to $250,000, 5 years
imprisonment, or both.
Section 3. Modification of Penalty for Voter Intimidation.
Section 3 amends title 18 of the United States Code to increase
the maximum prison term for voter intimidation from 1 year to 5
years.
Section 4. Sentencing Guidelines. Section 4 directs the
United States Sentencing Commission to review and amend the
Federal sentencing guidelines in accordance with the new
criminal penalty for deceptive practices.
Section 5. Reporting Violations and Remedial Action.
Section 5 directs the Attorney General to correct specific
instances of deceptive practices by providing voters with
accurate election information, and specifies that the Attorney
General should work with interested entities to determine how
to best take such corrective actions. Section 5 also directs
the Attorney General to refer deceptive practice violations to
State and Federal authorities for criminal or civil action
after the election; requires the Attorney General, the Federal
Communications Commission, and the Elections Assistance
Commission to study the feasibility of using public broadcast
systems to provide corrective election information; requires
the Attorney General, after each Federal election, to report to
Congress on allegations of deceptive practices, the actions
taken to correct deceptive practices, and any prosecutions
resulting from such allegations; and authorizes the Attorney
General to establish a Voting Integrity Task Force to which the
Attorney General may delegate his or her responsibilities under
this section.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
CHAPTER 29 OF TITLE 18, UNITED STATES CODE
CHAPTER 29--ELECTIONS AND POLITICAL ACTIVITIES
Sec.
592. Troops at polls.
* * * * * * *
618. Deceptive practices in Federal elections.
* * * * * * *
Sec. 594. Intimidation of voters
Whoever intimidates, threatens, coerces, or attempts to
intimidate, threaten, or coerce, any other person for the
purpose of interfering with the right of such other person to
vote or to vote as he may choose, or of causing such other
person to vote for, or not to vote for, any candidate for the
office of President, Vice President, Presidential elector,
Member of the Senate, Member of the House of Representatives,
Delegate from the District of Columbia, or Resident
Commissioner, at any election held solely or in part for the
purpose of electing such candidate, shall be fined under this
title or imprisoned not more than [one year] 5 years, or both.
* * * * * * *
Sec. 618. Deceptive practices in Federal elections
(a) Whoever, before a Federal election, knowingly
communicates false election-related information about that
election, with intent to prevent another person from exercising
the right to vote in that election, or attempts to do so, shall
be fined under this title or imprisoned not more than 5 years,
or both.
(b) As used in this section--
(1) the term ``Federal election'' means any
general, primary, run-off, or special election for the
office of President, Vice President, presidential
elector, Member of the Senate, Member of the House of
Representatives, or Delegate or Commissioner from a
territory or possession; and
(2) the term ``election related information'' means
information regarding--
(A) the time, place, or manner of
conducting the election;
(B) the qualifications for or restrictions
on voter eligibility for the election,
including--
(i) any criminal penalties
associated with voting in the election
by ineligible voters; or
(ii) information regarding a
voter's registration status or
eligibility;
(C) with respect to a closed primary
election, the political party affiliation of
any candidate for office, if the communication
of the information also contains false
information described in subparagraph (A) or
(B); or
(D) the explicit endorsement by any person
or organization of a candidate running for any
office voted on in the election.
Additional Views
We support this bill as far as it goes. We want to stamp
out voter fraud as much as the sponsors of the bill. However,
we are disappointed that the Democrats on the Committee
repeatedly opposed efforts to strengthen the bill.
NONCITIZEN VOTING
It is illegal for noncitizens to vote in federal elections.
Yet Rep. Brian Bilbray's election opponent last November made
national news when she was asked by someone, ``I want to help,
but I don't have papers,'' and she replied ``Everybody can
help, yeah, absolutely, you can all help. You don't need papers
for voting, you don't need to be a registered voter to help.''
\1\
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\1\Dani Dodge, ``Busby on Defense, Says She Misspoke,'' San Diego
Union-Tribune (June 3, 2006).
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The illegal population in America is likely around 12 to 20
million illegal aliens, but the number could certainly be
higher. In addition to the illegal aliens already in the
country, the Census Bureau estimates that the illegal alien
population is growing by a minimum of 500,000 per year.
Combining the number of legal and illegal aliens, there are
likely at least 26 million non-U.S. citizens in the United
States at any given time, and the majority of them are legal
and illegal residents.\2\
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\2\ Written Testimony of Dan Stein, President, Federation for
American Immigration Reform, on ``Non-Citizen Voting and ID
Requirements for Elections,'' before the Committee on House
Administration (June 23, 2006).
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With the passage of the National Voter Registration Act of
1993 (NVRA), known as the ``Motor-Voter Law,'' the process of
registering to vote became nearly automatic for anyone applying
for a state driver's license. Under that law, the information
supplied by the applicant for a license doubles as information
for voter registration unless the applicant indicates they do
not want to be registered to vote. In 1996, Congress enacted
the Illegal Immigration Reform and Immigrant Responsibility
Act, making it a federal crime for noncitizens to vote in any
federal election (or any state election, unless authorized by
state law). As a penalty, ineligible noncitizens who knowingly
vote may be deported.\3\ Additionally, a noncitizen who falsely
claims to be a United States citizen is in violation of this
law. Still, despite these provisions, there have been many
documented reports of illegal noncitizen voting.
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\3\ 8 U.S.C. Sec. 1227 provides that:
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(6) Unlawful voters
(A) In general
Any alien who has voted in violation of any Federal, State,
or local constitutional provision, statute, ordinance, or
regulation is deportable.
(B) Exception
In the case of an alien who voted in a Federal, State, or
local election (including an initiative, recall, or
referendum) in violation of a lawful restriction of voting
to citizens, if each natural parent of the alien (or, in
the case of an adopted alien, each adoptive parent of the
alien) is or was a citizen (whether by birth or
naturalization), the alien permanently resided in the
United States prior to attaining the age of 16, and the
alien reasonably believed at the time of such violation
that he or she was a citizen, the alien shall not be
considered to be deportable under any provision of this
subsection based on such violation.
Last Congress, the House Administration Committee reported
out H.R. 4844, the ``Federal Election Integrity Act of 2006.''
In House Report 109-666, the House Administration Committee
reported as follows:
The U.S. Census Bureau estimated 8.7 million illegal
aliens were in the U.S. in 2000. Immigration officials
estimate that the illegal alien population grows by as
many as 500,000 every year. These non-citizen
population growth rates increase the potential for non-
citizens to exploit and manipulate the outcome of
elections.
In 1996, the Illegal Immigration Reform and Immigrant
Responsibility Act was enacted, making it a federal
crime for non-citizens to vote in any federal election.
Enforcement of the statute is hampered by the
difficulty involved in detecting violations. As no
proof of citizenship is required prior to voting,
violations by persons falsely presenting themselves as
citizens can go unnoticed. Even when evidence of a
violation presents itself, finding the perpetrators and
gathering sufficient evidence to prosecute them is very
difficult.
Despite the law that prohibits it, documented reports
of non-citizen voting have increased. During the June
22, hearing before this Committee, Dan Stein, President
of the Federation for American Immigration Reform,
presented the following documented cases of illegal
voting: (1) In the 2000 election, `election observers
reported that a `sizable number' of votes may have been
cast by ineligible felons, illegal immigrants, and non-
citizens' in Florida; (2) In Utah, Legislative Auditor
General John Schaff said in a February 8, 2005 report
to the President of the Utah Senate that more than
58,000 illegal immigrants had Utah drivers' licenses,
nearly 400 of them used their license to register to
vote in Utah, and a sampling of that group revealed at
least 14 actually voted in an election; and (3)
Hawaiian election officials found 543 Oahu residents
who were not U.S. citizens had registered to vote.
Moreover, an investigation by the Immigration and
Naturalization Service into alleged fraud in a 1996
Orange County, California congressional race revealed
that non-citizens were registered to vote in the 46th
Congressional District in the disputed election between
Republican Robert Dornan and Democrat Loretta Sanchez.
The Task Force established by the Committee on House
Oversight found clear and convincing evidence that 748
invalid votes were cast in that election.\4\ Further,
state officials found that over 300 non-citizens
illegally voted in that contest. These figures did not
exceed the margin of victory, but they clearly
demonstrate this problem is real and can impact the
outcome in a close election.
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\4\ U.S. House of Representatives Report 105-416 ``Dismissing the
Election Contest Against Loretta Sanchez,'' 105th Congress 2d Session,
February 12, 1998.
Patrick Rogers, a New Mexico attorney, proffered
compelling examples of illegal and fraudulent voting at
the Committee's hearing on June 22, 2006. In support of
this testimony, Mr. Rogers presented to the Committee
the voter identification card of a woman holding a
green card, who claimed she was pressured to register
while standing in line to receive government services.
Mr. Rogers also provided the Committee with several
documented examples of illegal voting by non-citizens
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in the United States as follows:
L(1) In Maryland, a 2006 e-mail from a member of
the Montgomery County Board of Elections in Montgomery
County, Maryland was made public indicating he was
going to register people to vote `regardless of
status.' (2) Donna Hope, a non-citizen immigrant from
Barbados who resides in Philadelphia, was told by a
representative of the voter registration group `Voting
is Power,' the voter mobilization arm of the Muslim
American Society, that she could register to vote if
she has been in the United States at least 7 years. Ms.
Hope completed the registration form and was added to
the voting rolls. In November of 2004, Ms. Hope did not
vote because she was not a citizen, but someone
illegally cast a ballot in her name. (3) In 1998,
California Secretary of State Bill Jones referred to
the INS claims by nearly 450 people called for jury
duty in Orange County, California who claimed they were
exempt from jury duty because they were non-citizens.
The jury duty lists are pulled from driver's license
and registered voter files.
The Committee's field briefing in Arizona also revealed
accounts of voter fraud perpetrated by non-citizens.
The Honorable Andrew Thomas, Maricopa County Attorney,
advised the Committee of indictments of ten individuals
who were non-citizens who nevertheless registered to
vote. His testimony states in relevant part:
LThey were charged with filing false documents, a
class 6 felony. Maricopa County Recorder Helen Purcell
referred these matters to the County Attorney's Office
after her office received jury questionnaire forms from
the county jury commissioner. These forms were filled
out by potential jurors who claimed they were unable to
serve on a jury because they were not citizens. The
county recorder's office found that they had claimed to
be citizens when they filled out a voter registration
form. Four of these defendants voted in at least one
election. In addition to the ten charged defendants,
the County Attorney is reviewing 149 other cases in
which non-citizens have allegedly illegally registered
to vote.
LThe county recorder has received inquiries from
people seeking to become U.S. citizens who have been
told by Immigration and Customs Enforcement to obtain a
letter from her office confirming they have neither
registered to vote nor voted. To date, a review of
these matters has turned up 37 non-citizens who have
registered to vote. Fifteen of these individuals have
voted. And these numbers come from a relatively small
universe of individuals--legal immigrants who seek to
become citizens. These numbers do not tell us how many
illegal immigrants have registered and voted.
The United States Department of Justice has also
investigated and prosecuted several cases of non-
citizen voting.\5\ In Colorado, U.S. Attorneys
convicted an individual of providing false information
concerning U.S. citizenship for voter registration
purposes.\6\ In Alaska, a non-citizen was charged and
found guilty of voting in the 2000, 2002 and 2004
elections in violation of 18 U.S.C. Section 611.\7\
Additionally, 15 non-citizens were charged and 10 were
convicted of voting in Federal elections conducted in
counties located in South Florida.\8\
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\5\ Election Fraud Prosecutions & Convictions Ballot Access &
Voting Integrity Initiative, Criminal Division, Public Integrity
Division, United States Department of Justice, October 2002-September
2005.
\6\ United States v. Shah, Case No. 04-CR-00458.
\7\ United States v. Rogelio Mejorada-Lopez, Case No. 05-CR-074.
\8\ United States v. McKenzie, Case No. 04-CR-60160; United States
v. Francois, No. 04-CR-60159; United States v. Exavier, No. 04-CR-
60161; United States v. Lloyd Palmer, No. 04-CR-60159; United States v.
Velrine Palmer, No. 04-CR-60162; United States v. Shivdayal, No. 04-CR-
60164; United States v. Rickman, No. 04-CR-20491; United States v.
Knight, No. 04-CR-20490; United States v. Sweeting, No. 04-CR-20489;
United States v. Lubin, No. 04-CR-60163; United States v. Bennett, No.
04-CR-14048; United States v. O'Neil, No. 04-CR-60165; United States v.
Torres-Perez, No. 04-CR-14046; United States v. Phillip, No. 04-CR-
80103; United States v. Bain Knight, No. 04-CR-14047.
While these examples demonstrate the need for
additional protections to ensure only citizens are
voting, the facts also reveal that eligible citizens
are able to prove their eligibility and are not
dissuaded from voting if required to do so. States that
have implemented an identification requirement for
voting have experienced positive results. At the
Committee's field briefing in Arizona, Secretary of
State Jan Brewer discussed the effects of the newly
enacted identification law known as Proposition 200.
Under Proposition 200, all voters are required to
present identification at the polls before casting a
ballot and all new voter registration applications must
be accompanied by sufficient proof of citizenship.
While identification is required in all Arizona
jurisdictions, 15 jurisdictions have successfully
implemented a proof of citizenship requirement.
Secretary Brewer testified that Arizona has experienced
a 15.4 percent increase in voter registration since the
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requirements of Proposition 200 went into effect.
Currently, state and local governments do not have any
effective way to prevent non-citizens from registering
to vote and voting. Section 303(b)(4)(A) of HAVA
requires inclusion of a citizenship box on the National
Voter Registration Form. When applying to register to
vote, individuals must check the box affirming their
citizenship. The law provides that registration forms
that do not have the box checked should be rejected and
returned to the individual. However, some states are
not enforcing this requirement. Even in states that do
enforce the citizenship requirement, it is still done
on an honor system that relies on the truthful response
of the registrant. While the present state of the law
leaves the system open to abuse, H.R. 4844's
identification and proof of citizenship requirement
will ensure that only eligible citizens are voting.
While there may be disputes about the nature and extent
of voter fraud, there can be no dispute that it occurs.
In close elections, even a small amount of fraud can
affect the outcome. More importantly, reports of fraud
can cause people to lose confidence in the integrity of
the system and thereby discourage participation. People
must be encouraged to vote with confidence that their
vote will be counted and will not be cancelled out by
an illegal vote.
In North Carolina, recent investigations into illegal
noncitizen voting led one resident agent in charge of the
Immigration and Customs Enforcement agency's local office to
say ``It goes to the integrity of the entire democratic system
when we have . . . aliens registering to vote.'' \9\ As the
Charlotte News and Observer reported:
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\9\ Jessica Rocha, ``Voter Rolls Risky for Aliens,'' The Charlotte
News and Observer (December 7, 2006).
Voter registration laws in most parts of the country
don't require written proof of citizenship . . . It is
so easy to register that Attracta Kelly of the
Immigrant Legal Assistance Project at the N.C. Justice
Center warns clients against even taking the form when
going to the Division of Motor Vehicles office because
it could hurt their chances of ever getting
citizenship. ``Especially if they don't speak English
very well. They just think it's a part of their
[driver's license] test,'' she said. ``It's handed
oftentimes to people who are just legal residents.''
\10\
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\10\ Jessica Rocha, ``Voter Rolls Risky for Aliens,'' The Charlotte
News and Observer (December 7, 2006).
Patrick Rogers, the attorney in New Mexico, testified as
follows before the House Administration Committee on June 22,
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2006:
Voting by illegal immigrants is one of the toughest
issues to study in the election and voting area. This
is because there is no centralized or accessible list
of illegal immigrants that can be compared to voter
registration lists or lists of persons who actually
cast ballots. The closest ``list'' I am aware of that
could be used as a basis for systematic research is a
list maintained by the Bureau of Immigration and
Customs Enforcement (``ICE'') at the Department of
Homeland Security. This is a list of those illegal
immigrants who have overstayed their Visas or are
``deportable.'' But the list is not available to
election officials to check or validate voter
registration rolls . . . A Congressional Research
Service report from September of 2005 indicated that
more than 25 states did not require proof of legal
presence in the United States in order to apply for and
obtain a driver's license.
The essential problem is that there is no national
citizenship registry, so state and local officials are unable
to confirm citizenship, and no jurisdiction requires voters to
show proof of citizenship at the polls. ``There is no way of
checking,'' said Maryland State Board of Elections
Administrator Linda H. Lamone. ``We have no way of doing that.
We have no access to any information about who is in the United
States legally or otherwise.'' \11\ The REAL ID Act does not
require proof of citizenship. It requires proof of lawful
presence, as there is no prohibition from issuing driver's
licenses to foreign visitors, legal immigrants, or even illegal
immigrants, although the REAL ID Act does limit states to
issuing only temporary licenses of no longer than one year's
duration and state ID cards to illegal immigrants.
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\11\ Christina Bellantoni, ``Little to Stop Illegal Aliens from
Voting,'' The Washington Times (September 24, 2004).
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In 2005, a prominent group of bipartisan leaders and
scholars, led by former President Carter and Secretary of State
James Baker, III, issued a very influential report.\12\ One of
the chief recommendations of the bipartisan Carter-Baker
Commission on Voting was as follows:
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\12\ ``Building Confidence in U.S. Elections: Report of the
Commission on Federal Election Reform'' (September 2005) (the ``Carter-
Baker Report'').
Instead of creating a new card, the Commission
recommends that states use ``REAL ID'' cards for voting
purposes. The REAL ID Act, signed into law in May 2005,
requires states to verify each individual's full legal
name, date of birth, address, Social Security number,
and U.S. citizenship before the individual is issued a
driver's license or personal ID card. The REAL ID is a
logical vehicle because the National Voter Registration
Act established a connection between obtaining a
driver's license and registering to vote. The REAL ID
card adds two critical elements for voting--proof of
citizenship and verification by using the full Social
Security number. The REAL ID Act does not require that
the card indicates citizenship, but that would need to
be done if the card is to be used for voting
purposes.\13\
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\13\ Carter-Baker Report, at 19 (emphasis added). The card mandated
by the REAL ID Act includes a person's full legal name, date of birth,
a signature captured as a digital image, a photograph, and a person's
Social Security number. We are bemused by the statement of Rep. Jerrold
Nadler at the markup that ``The Carter-Baker Commission was grossly
mistaken in many of its findings and should not be given any credence
in the area of voting fraud.'' Members of the Carter-Baker Commission
on Federal Election Reform included former President Jimmy Carter,
former Democratic Senate Majority Leader Tom Daschle, and former
Democratic House Member Lee Hamilton.
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HOW H.R. 1281 ADDRESSES NONCITIZEN VOTING
We believe that H.R. 1281 does address noncitizen voting in
an indirect way. We explain that reasoning below.
H.R. 1281 provides that whoever ``knowingly communicates
false election-related information about that election, with
intent to prevent another person from exercising the right to
vote in that election, or attempts to do so, shall be fined
under this title or imprisoned not more than 5 years, or
both.'' \14\ The National Voter Registration Act of 1993 \15\
requires that a person registering to vote affirm that they are
a U.S. citizen.\16\ If a noncitizen signs, or attempts to sign,
any form that can be used for voting purposes--including a
voting registration form--and that form states that they are a
citizen when they are not a citizen, then that is a false
statement. The bill also specifically defines ``election
related information'' to include ``information regarding a
voter's registration status or eligibility.'' \17\ If such a
noncitizen who makes a false statement on a voting registration
form is consequently allowed to vote, and they vote for, say,
Candidate Brown, they will necessarily negate the legitimate
vote of someone else who was a citizen and voted for rival
Candidate Jones. If someone votes illegally and negates a legal
voter's vote, the illegal vote has effectively denied the legal
vote's right to vote. In the landmark case of Reynolds v. Sims,
the Supreme Court stated ``the right of suffrage can be denied
by a debasement or dilution of the weight of a citizen's vote
just as effectively as by wholly prohibiting the free exercise
of the franchise.'' \18\ So an illegally voting noncitizen in
that case would violate the clear terms of H.R. 1281 and be
subject to up to five years in jail.
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\14\ Sec. 2(a) of H.R. 1281.
\15\ 42 U.S.C. Sec. 1973gg.
\16\ 42 U.S.C. Sec. 1973gg-3(a)(2)(C)(i).
\17\ Sec. 2(a) of H.R. 1281.
\18\ Reynolds v. Sims, 377 U.S. 533, 555 (1964).
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The bill also provides that ``[i]mmediately after receiving
a report [of a violation of the bill], the Attorney General
shall consider and review such report and, if the Attorney
General determines that there is a reasonable basis to find
that a violation has occurred, the Attorney General shall . . .
undertake all effective measures necessary to provide correct
information to voters affected by the false information.'' \19\
``All effective measures necessary to provide correct
information'' to the voting public affected by illegal
noncitizen voting includes the creation of a citizenship
registry that will prevent voting fraud and ensure that only
citizens can vote in Federal elections. In the absence of a
database that ensures only citizens are voting, it would not be
truthful to keep telling voters that their legal votes will be
counted, and not be negated by an illegally cast vote.
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\19\ Sec. 5(b)(1) of H.R. 1281.
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Regarding the issue of intent, Blacks's Law Dictionary
defines ``constructive intent'' as ``A legal principle that
actual intent will be presumed when an act leading to the
result could have been reasonably expected to cause that
result.'' Further, Professors LaFave and Scott, in their
authoritative treatise on criminal law, write, ``The meaning of
the word `intent' in the criminal law has always been rather
obscure, largely as a result of its use in such phrases as
`criminal intent,' `general intent,' `specific intent,'
`constructive intent,' and `presumed intent.'' \20\ If someone
knows they are not a citizen, but they sign a voter
registration form that states they are a citizen, and then that
person votes illegally, and knows they are voting illegally,
then they obviously know that their illegal vote is going to
cancel out the vote of another, legally voting citizen. That
knowledge would constitute an intent to deny another voter
their right to exercise their vote. Intent can be read at least
that expansively in the criminal context, and it can be read
even more expansively in the civil context where large monetary
fines are at issue.
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\20\ W. Lafave & A. Scott, Criminal Law Sec. 3.5, at 216 (2d ed.
1986), and most recent 2007 update.
---------------------------------------------------------------------------
Reading those concepts together, we believe this bill does
prohibit false claims of citizenship that are made to register
to vote. But we also think that concept could have been made
clearer.
REPUBLICAN AMENDMENTS
First, we are glad that Ranking Member Smith's amendment
was adopted at committee. It struck the part of the bill that
limits the prohibition on voting fraud to fraud committed
``within 60 days'' of a federal election. Illegal voting by
non-citizens can occur when voting registration forms are
filled out more than 60 days before a federal election. Nothing
the Supreme Court has said indicates that there is any
constitutional problem with Congress's prohibiting lying on
voting registration forms at all times, not just 60 days before
an election. Voting fraud is voting fraud, regardless of what
page of the calendar it occurs on.
However, we made several attempts to make it clearer that
the bill addresses the serious problem of noncitizen voting. We
wanted to broaden the bill to make it clear that the bill
covers not only fraud that directly denies the right to vote,
but also fraud that has the effect of denying the right to
vote. We are disappointed that the Democratic majority, on a
party line vote, opposed Mr. Chabot's amendment to the bill
that would have simply added the word ``effectively'' before
the words ``exercising the right to vote'' in H.R. 1281 as
introduced, such that the bill would prohibit people from
preventing other people from ``effectively exercising the right
to vote.''
Clearly, the right to vote means nothing if it cannot be
effectively exercised. Again, in the landmark case of Reynolds
v. Sims, the Supreme Court stated ``the right of suffrage can
be denied by a debasement or dilution of the weight of a
citizen's vote just as effectively as by wholly prohibiting the
free exercise of the franchise.'' \21\ And in Williams v.
Rhodes, the Supreme Court struck down a law because it
infringed on ``the right of qualified voters . . . to cast
their votes effectively.'' \22\
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\21\ Reynolds v. Sims, 377 U.S. 533, 555 (1964).
\22\ 393 U.S. 23, 30 (1968).
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Chairman Nadler of the Subcommittee on the Constitution,
Civil Rights, and Civil Liberties stated in the first sentence
of his opening statement on this bill at the Judiciary
Committee markup that ``[t]he right to vote and the right to
cast an effective vote in a free and fair election is the
fundamental pillar of any democratic country.'' \23\ At the
markup of H.R. 1281, Chairman Conyers said, ``by inserting the
word `effectively,' it would add vagueness creating
constitutional due process questions in a criminal context.''
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\23\ House Judiciary Committee Markup of H.R. 1281 (March 29, 2007)
(remarks of Rep. Nadler).
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But the Supreme Court itself has used the term
``effectively'' to describe ``the right of qualified voters . .
. to cast their votes effectively.'' \24\ Clearly the Supreme
Court does not find that word unconstitutionally vague. Mr.
Chabot's amendment would have made it a crime to communicate
false election related information with the intent to
effectively deny someone else's right to vote.
---------------------------------------------------------------------------
\24\ 393 U.S. 23, 30 (1968).
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At the markup, Mr. Davis said ``[t]he principal concern
with [the] amendment is that I believe it would shift the focus
of prosecution from the intent to the effect of the wrongful
action.'' That statement does not withstand examination. If the
bill's subject were people who act ``with intent to prevent
another person from effectively exercising the right to vote,''
anyone with the intent to effectively deny the right to vote
would be subject to prosecution. The amendment would not alter
the requirement that intent be present. We do not understand
why anyone would oppose an amendment prohibiting people from
acting ``with intent to prevent another person from effectively
exercising the right to vote.'' If someone communicates false
election related information with the intent to effectively
negate someone else's legal vote, they should also be punished
with up to five years in prison.
The Fifteenth Amendment itself states that ``The right of
citizens of the United States to vote shall not be denied or
abridged . . . on account of race.'' \25\ One of the most
respected law professors in the country, John Hart Ely, has
written that he was unable ``to read the Fifteenth Amendment as
meaning anything other than that no one person's vote is to be
intentionally made less effective than another's because of his
race or color.'' \26\
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\25\ U.S. Const. Amendment XV.
\26\ John Hart Ely, ``Gerrymanders: The Good, the Bad, and the
Ugly,'' 50 Stan. L. Rev. 607, 632 (1998) (emphasis added).
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Chairman Conyers ruled several other amendments non-
germane, including an amendment offered by Mr. Forbes that
would have provided that ``If the offense results in voting in
a Federal election by more than 10 persons who are not citizens
of the United States, the offender shall be fined under this
title or imprisoned not more than 10 years, or both.'' Other
amendments Chairman Conyers ruled non-germane included an
amendment offered by Mr. Feeney that would have created a
uniform system of voting eligibility verification and an
amendment offered by Mr. King that would have required the
Department of Justice to conduct a study on the feasibility of
the creation of a national citizenship database for use in
verifying voting eligibility and preventing voting fraud. We
believe that all of these amendments were germane. They would
have improved the bill by addressing the serious problem of
noncitizen voting more directly and comprehensively. We all
want to eliminate the problem of voter fraud and we are
disappointed that the Democrats opposed our efforts to
strengthen this bill.
Lamar Smith.
Steve Chabot.
Ric Keller.
Tom Feeney.
Trent Franks.