[Senate Report 110-191]
[From the U.S. Government Publishing Office]
Calendar No. 411
110th Congress Report
SENATE
1st Session 110-191
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DECEPTIVE PRACTICES AND VOTER INTIMIDATION PREVENTION ACT OF 2007
_______
October 4, 2007.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 453]
The Committee on the Judiciary, to which was referred the
bill (S. 453) to prohibit deceptive practices in Federal
elections, having considered the same, reports favorably
thereon with amendment and recommends that the bill do pass.
CONTENTS
Page
I. Background and Purpose of the Deceptive Practices and Voter
Intimidation Prevention Act of 2007..............................1
II. History of the Bill and Committee Consideration..................3
III. Section-by-Section Summary of the Bill...........................8
IV. Cost Estimate...................................................13
V. Regulatory Impact Evaluation....................................15
VI. Conclusion......................................................15
VII. Additional Views of Senators Kyl, Graham, Cornyn, and Brownback.16
VIII.Changes to Existing Law Made by the Bill, as Reported...........19
I. Background and Purpose of the Deceptive Practices and Voter
Intimidation Prevention Act of 2007
The right to vote is a fundamental right accorded to United
States citizens, and the unimpeded exercise of this right is
essential to the functioning of our democracy.
It has been 137 years since the States ratified the
Fifteenth Amendment to the United States Constitution in 1870,
which provides that ``the right of citizens of the United
States to vote shall not be denied or abridged by the United
States or by any State on account of race [or] color.'' The
Amendment also gave Congress power to enforce the amendment by
``appropriate legislation.''
Tragically, African Americans still had to suffer through
nearly another century of discrimination at the hands of
discriminatory Jim Crow laws and regulations. During the Jim
Crow era, it was difficult, if not impossible, for African
Americans to register to vote and cast their votes due to
grandfather clauses, literacy tests, poll taxes, property
requirements, harassment, violence, and other significant
barriers.
The 19th Amendment to the Constitution was ratified in
1920, prohibiting the denial of the right to vote on the basis
of sex. In 1964, the 24th Amendment to the Constitution was
ratified, prohibiting the use of a poll tax or any other tax to
deny a citizen the right to vote. In 1965, Congress enacted the
Voting Rights Act, which was designed to once and for all
prohibit discrimination against voters on the basis of race or
color. In 1971, the 26th amendment to the Constitution was
ratified, prohibiting the denial of the right to vote to anyone
18 years or older simply because of their age. In 2006,
Congress reauthorized the Voting Rights Act for another 25
years and rejected efforts to weaken this historic law.
Despite the constitutional and statutory protections
provided, deceptive practices are still used today to keep
citizens away from the polls. Deceptive practices generally
focus on providing false information regarding the time or
place of an election or voting eligibility requirements, in an
effort to keep voters away from the ballot box or to prevent
voters from voting for the candidate of their choice. These
efforts are primarily targeted at racial minorities, new
voters, the elderly, the disabled, low-income individuals,
naturalized citizens, formerly-incarcerated voters, and other
groups that are disadvantaged or have historically faced
discrimination.
Deceptive practices have a long history, but have received
greater attention in recent years. For example, shortly before
the 1990 midterm 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 a
postcard were African American.
In 2002, fliers stating that voters could cast their
ballots three days after the election ``if the weather is bad''
were distributed in New Orleans public housing complexes.
In the 2004 presidential election, voters in Milwaukee
received fliers from the non-existent ``Milwaukee Black Voters
League,'' warning that voters risked imprisonment for voting
and the loss of custody of their children if they were ever
found guilty of any offense--even a traffic violation.
Also in the 2004 general election, voters in Franklin
County, Ohio, received fliers stating that due to ``confusion
caused by unexpected heavy voter registrations'' Republicans
should vote on Tuesday and Democrats should vote on Wednesday.
A similar deceptive flier was distributed that year in
Allegheny County, Pennsylvania, asking Republicans to vote on
Tuesday and Democrats to vote on Wednesday, and concluding by
thanking voters for ``cooperating with us in this endeavor to
create a peaceful voting environment.''
In the 2006 mid-term 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''. The letter also
falsely stated that the U.S. Government was ``installing a new
computer system to verify the names of all new registered
voters,'' and that ``[a]nti-immigration organizations can ask
for information from this new computer system.''
Also in 2006, registered voters in Virginia received phone
messages falsely warning them that the ``Virginia Elections
Commission'' had determined that they were ineligible to vote.
Similar misinformation campaigns were reported in jurisdictions
across the country.
The same year, in Maryland, certain campaigns for Governor
and United States Senator distributed fliers in predominantly
African American neighborhoods falsely claiming that the
candidates had been endorsed by prominent figures in the
community, when in fact these prominent figures in the
community had actually endorsed the opponents of the
candidates.
Congress has a compelling interest in protecting the
integrity of elections, safeguarding the right of all citizens
to vote for the candidate of their choice, and preventing any
attempts to keep voters from exercising their right to vote.
The Deceptive Practices and Voter Intimidation Prevention Act
of 2007 would prohibit and punish the practice of communicating
false information regarding: the time, place or manner of the
election; the qualifications for or restrictions on voter
eligibility for such election; or the explicit endorsement by
any person or organization of a candidate's election. The bill
would prohibit and punish deceptive practices committed with
the intent to prevent a citizen from exercising the right to
vote. The bill would increase monetary and criminal penalties
for deceptive practices and voter intimidation in Federal
elections. The bill would also require the Attorney General to
respond to deceptive practices by providing accurate
information to affected voters regarding the time and place of
elections and rules on voter eligibility, in an effort to
counter the harm caused by deceptive practices.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
Senator Barack Obama and Senator Charles E. Schumer
introduced S. 453, the Deceptive Practices and Voter
Intimidation Prevention Act of 2007, on January 31, 2007,
joined by Senators Leahy, Cardin, Feingold, Kerry, Feinstein,
Clinton, Boxer and Kennedy as original cosponsors. Since the
bill's introduction, Senators Levin, Landrieu, Brown, Johnson,
Whitehouse, McCaskill, Wyden, Durbin and Coburn have joined as
cosponsors. The bill was referred to the Committee on the
Judiciary.
The House of Representatives passed companion legislation,
H.R. 1281, by voice vote on June 25, 2007.
B. HEARING ON JUNE 7, 2007
The Judiciary Committee held a hearing on June 7, 2007,
chaired by Senator Benjamin L. Cardin and entitled,
``Prevention of Deceptive Practices and Voter Intimidation in
Federal Elections: S. 453.'' Senators Charles E. Schumer and
Barack Obama testified on the first panel. Testifying on the
second panel were Douglas F. Gansler, Attorney General for the
State of Maryland, and Jack B. Johnson, County Executive for
Prince George's County in the State of Maryland. Testifying on
the third panel were Hilary O. Shelton, Director of the
Washington Bureau of the National Association for the
Advancement of Colored People (NAACP); John Trasvina, President
and General Counsel of the Mexican American Legal Defense and
Education Fund (MALDEF); Richard Briffault, Joseph Chamberlain
Professor of Legislation at the Columbia Law School; William B.
Canfield, Principal at Williams & Jensen, PLLC; and Peter N.
Kirsanow, Commissioner of the United States Commission on Civil
Rights (testifying in his personal capacity).
The hearing focused on the need for S. 453 to combat the
decades-old practice of communicating intentionally false
information in an effort to disenfranchise voters and to keep
voters away from the polls. The hearing discussed some of the
forms of deceptive practices that have been seen in recent
elections. In detailing some of these newer tactics, Senator
Cardin quoted, in part, a letter dated June 4, 2007, from
former United States Senator Charles (``Mac'') Mathias, Jr.:
While the methods employed to deter voting differ
today from those in vogue years ago, the deplorable
objective remains the same: to help destroy the
integrity of the election process by suppressing
participation, especially by minorities. Because these
more modern methods of coercion and intimidation do not
fall neatly within the ambit of current law,
legislation amending Section 1971(b) is needed. I
believe S. 453 fills that gap admirably.
Douglas F. Gansler, Attorney General for the State of
Maryland, strongly endorsed S. 453 and described deceptive
fliers distributed during the 2002 and 2006 Federal elections
in African American neighborhoods. In 2002, a flier showing the
wrong election date and falsely stating that parking tickets
must be paid before voting was distributed in predominantly
African American areas in Baltimore City, in an apparent effort
to lower voter turnout.
Jack B. Johnson, County Executive of Prince George's County
in Maryland, testified in support of S. 453 and described how,
on the date of the Federal election in 2006, fliers were
distributed in his County that misleadingly suggested that Mr.
Johnson had endorsed certain Republican candidates despite the
fact that Mr. Johnson had, in fact, endorsed those candidates'
opponents. These same fliers falsely listed certain candidates
as part of a ``Democratic Sample Ballot.''
Hilary O. Shelton, Director of the Washington Bureau of the
NAACP, testified in support of the bill. He testified that:
Unfortunately, some people are still so desperate to
win elections--elections that they fear they cannot
rightfully win--that they resort to deceptive
practices, misinformation and lies, to try to keep
legitimate voters away from the polls or to support
candidates whom they might not otherwise vote for. It
is even more unfortunate that these practices often
target and exploit many of the same populations that
have historically been excluded from the ballot box.
Specifically, vulnerable populations, such as racial
and ethnic minorities, the disabled and/or the poor and
senior citizens are often targeted by those
perpetuating these deceptive practices. . . Yet there
are still people and organizations in our country who
are so afraid of the outcome of our democratic process
that they must stoop to lies, duplicitous behavior, and
intimidation to try to keep certain segments of our
population and communities away from the voting poll.
Mr. Shelton provided the following examples of deceptive
tactics in recent elections:
In Ingham County, Michigan, a partisan poll
challenger confronted every African American attempting
to vote that day. There were no reports of any
Caucasian voters even being questioned. In Orange
County, California, 14,000 Latino voters got letters in
Spanish saying it was a crime for immigrants to vote in
a Federal election. It did not state or even clarify
that immigrants who are citizens have the right to vote
and indeed should. In Baltimore, Maryland, misleading
fliers were placed on cars in predominantly African
American neighborhoods giving the wrong date for the
upcoming election day. In Virginia, registered voters
received recorded (robotic) calls that falsely stated
that the recipient of the call was registered in
another State and would face criminal charges if they
came to the polls to vote that day. It was also in
Virginia that voters received phone calls stating that
because they were such regular voters they could vote
this time by telephone, by simply pressing a number at
that time for the candidate of their choice. The call
ended by repeating that they had now voted and did not
need to go to the polls.
Mr. Shelton testified that these cases warranted a quick
response by the Federal Government to expose the lies told to
voters and to provide corrected information so voters could go
to the polls in time to have their votes counted.
John Trasvina, President and General Counsel of MALDEF,
testified in support of the bill because: ``voter intimidation
and deceptive practices present serious threats to the
integrity of the American democratic system. . . . We have
recently witnessed an increase in voter suppression,
intimidation and deceptive practices aimed at Latino voters.
When a community organizes and begins to make new political
gains, it often becomes subject to deliberate attempts to halt
its electoral advancement by any available means, including the
use of deceptive practices and voter intimidation.'' Mr.
Trasvina described a letter sent to approximately 14,000
Spanish-surname voters in Orange County, California, that
provided false information to prospective voters, including the
statement that immigrants who vote in Federal elections are
committing a crime that can result in incarceration and
possible deportation.
Richard Briffault, Joseph Chamberlain Professor of
Legislation at the Columbia Law School, testified in support of
the bill that ``Congress plainly has the authority to adopt
laws vindicating the integrity of federal elections and the
rights of federal voters'' such as S. 453. Professor Briffault
further testified that S. 453 ``is entirely consistent with the
First Amendment's protection of freedom of speech. Indeed, by
protecting voters from false statements intended to deceive
voters or prevent voters from voting, the bill actually
promotes the values of political participation and personal
autonomy that are at the heart of the First Amendment.'' He
testified that:
The only significant constitutional issue in the
regulation of false election communications is the
requirement that the law be narrowly tailored to avoid
impinging on or chilling constitutionally protected
speech. S. 453 clearly satisfies the narrow tailoring
requirement. First, S. 453 is limited to the
communication of falsehoods that the speaker knows to
be false and which the speaker communicates in order to
prevent another person from voting. This is actually
significantly tighter than the constitutional test for
the regulation of false statements adopted by the
Supreme Court. . . . Innocent, negligent, and even
reckless mistakes are not restricted.
Second, S. 453 is limited to a very constrained set
of false statements of fact--statements dealing with
the time, place, or manner of voting; with eligibility
to vote; and with explicit endorsements by persons or
organizations. These involve simple statements of fact
that do not remotely deal with matters of opinion, or
the issues, ideas, or political views that make up an
election campaign.
Professor Briffault's statement for the hearing record sets
out legal arguments in support of the constitutionality of S.
453.
William B. Canfield, Principal at Williams & Jensen, PLLC,
testified in opposition to the bill. Mr. Canfield stated his
view that S. 453, as introduced, was overly broad and
unnecessary. Mr. Canfield also objected to the bill's provision
of a private right of action for aggrieved individuals.
Peter N. Kirsanow, a member of the United States Commission
on Civil Rights and the National Labor Relations Board,
testified in his personal capacity. Mr. Kirsanow suggested that
the Committee should expand S. 453 to cover the issues of
fraudulent registration, multiple registration, and compromised
absentee ballots. During the course of the hearing, in response
to a question from Senator Orrin G. Hatch, Professor Briffault
clarified that fraudulent registration and fraudulent voting
are already criminalized.
The People for the American Way and the People for the
American Way Foundation submitted a statement for the record in
support of the legislation. The statement elaborated on the
need for the bill:
Federal law may not currently criminalize all the
deceptive practices we saw in the 2006 elections,
including disinformation campaigns and harassing
robocalls. Such practices try to deceive voters into
changing their votes, or voting on the wrong day, or by
sending them to the wrong polling place. Some schemes
attempt to convince citizens that voting will be
difficult or even dangerous, or simply annoy them so
much that they stay home from the polls in disgust at
the whole process. Americans deserve elections that are
clean and fair. We may not be able to stop dirty tricks
in campaigns, but we can make it harder for them to
succeed--and we can make the consequences very serious
for those who carry them out.
Barbara Arnwine, Executive Director of the Lawyers'
Committee for Civil Rights Under Law, submitted a statement for
the record detailing the lengthy history of deceptive practices
undermining our democracy's electoral integrity. Her testimony
included specific examples of deceptive practices and stated
that ``across the country, primarily in traditionally
disenfranchised communities, voters are deliberately
misinformed about the mechanics of elections.'' Ms. Arnwine
expressed her organization's support for the bill:
``This crucial piece of legislation targets the
necessary problems in the election system by striking a
necessary balance between the rights of all Americans
to cast an effective ballot and our core First
Amendment constitutional rights.'' Ms. Arnwine noted
that the Lawyers' Committee has joined with the NAACP,
the National Bar Association, and the People for the
American Way Foundation to form the Election Protection
Coalition, which has systematically collected reports
of deceptive practices or voter intimidation in Federal
elections.
Patricia M. Roberts, President of Citizens Against Un-
American Voter Intimidation, submitted a statement for the
record detailing the use of deceptive practices and voter
intimidation methods in Federal elections.
C. COMMITTEE CONSIDERATION
The bill was considered by the Committee on the Judiciary
on September 6, 2007. During Committee consideration, Senators
Durbin and Coburn requested to be added as cosponsors of the
measure.
Senator Schumer introduced an amendment in the nature of a
substitute. In addition to minor changes intended to clarify
the scope of the bill and the reporting requirements under the
bill, the substitute amendment reflects numerous substantive
changes proposed by members of the Committee, the Department of
Justice, and civil rights advocates.
Specifically, whereas the original bill provided civil and
criminal penalties for the communication of false information
regarding political party affiliation, this type of false
information is not covered in the substitute amendment. The
substitute amendment also eliminates the original bill's
private right of action for any aggrieved individual to enforce
the bill. Instead, the substitute amendment grants aggrieved
individuals the right to seek an order in Federal court
requiring the Attorney General to take corrective action as
provided in the bill, if the Attorney General fails to take
such corrective action within 72 hours (or sooner if necessary
to ensure timely corrective action before an election) after
receiving information that gives reasonable cause to believe a
violation has occurred.
Finally, the substitute amendment establishes several
safeguards in the section of the bill requiring the Attorney
General to counteract deceptive information by distributing
corrective information. The provision of corrective information
shall be strictly limited to the information necessary, shall
occur only if the false information distributed could
materially affect any individual's ability to vote, and shall
be limited to information regarding the time and place of an
election or regarding voter eligibility rules.
The substitute amendment, offered by Senator Schumer, was
accepted by a voice vote.
Senator Specter offered an amendment to expand the findings
in the bill to include examples of voter fraud. This amendment
was rejected on a roll call vote. The vote record is as
follows:
Tally: 9 Yes, 10 No.
Yeas (9): Specter (R-PA), Hatch (R-UT), Grassley (R-IA),
Kyl (R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX),
Brownback (R-KS), Coburn (R-OK).
Nays (10): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl
(D-WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY),
Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI).
Senator Hatch offered an amendment to provide a definition
for the term ``right to vote.'' This amendment was rejected on
a roll call vote. The vote record is as follows:
Tally: 9 Yes, 10 No.
Yeas (9): Specter (R-PA), Hatch (R-UT), Grassley (R-IA),
Kyl (R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX),
Brownback (R-KS), Coburn (R-OK).
Nays (10): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl
(D-WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY),
Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI).
Senator Hatch offered an amendment to expand the bill to
include the communication of false information with the intent
to facilitate voting by a person who is ineligible to vote.
This amendment was rejected on a roll call vote. The vote
record is as follows:
Tally: 9 Yes, 10 No.
Yeas (9): Specter (R-PA), Hatch (R-UT), Grassley (R-IA),
Kyl (R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX),
Brownback (R-KS), Coburn (R-OK).
Nays (10): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl
(D-WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY),
Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI).
The Committee then voted to report the Deceptive Practices
and Voter Intimidation Prevention Act of 2007, with an
amendment in the nature of a substitute, favorably to the
Senate. The Committee proceeded by voice vote.
III. Section-by-Section Summary of the Bill, as Reported
Section 1. Short title
Title: ``Deceptive Practices and Voter Intimidation
Prevention Act of 2007''.
Section 2. Findings
This section has 14 findings related to the fundamental
right to vote; historical efforts to suppress votes, including
deceptive practices and intimidation; the Federal Government's
interest in protecting the right to vote; and First Amendment
jurisprudence recognizing that false statements do not
necessarily enjoy constitutional protection.
Section 3. Prohibition on deceptive practices in federal elections
This section provides a civil penalty for persons who, with
the intent to prevent another person from exercising the right
to vote or from voting for the candidate of the voter's choice,
knowingly communicate within 60 days of a Federal election
information which they know to be false regarding: (1) the
time, place or manner of the election; (2) the qualifications
for or restrictions on voter eligibility for such election,
including criminal penalties associated with voting or a
voter's registration status or eligibility; or (3) the explicit
endorsement by any person or organization of a candidate for an
upcoming election.
The Committee contemplates that a suspect or defendant's
voluntary and timely communication of correct information to
voters affected by an initial communication of false
information may be a relevant factor in determining whether the
suspect or defendant acted with the intent to prevent another
person from exercising the right to vote or from voting for the
candidate of the voter's choice.
The Committee contemplates that enforcement by the
Department of Justice of the sections prohibiting false
explicit endorsements be focused on false explicit endorsements
purporting to be from public officials, community leaders,
organizations, or persons well known in the voting precinct in
which the deceptive communications occur.
This section also includes criminal penalties for the
provision of false information as described above.
The deceptive practices provision applies to any general,
primary, run-off, or special election held solely or in part
for the purposes of electing 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.
This section provides penalties of not more than a $100,000
fine or five years imprisonment, or both.
This section includes an attempt provision.
This section amends the current voter intimidation statute
so that it clearly applies in any general, primary, run-off, or
special election held solely or in part for the purposes of
electing 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.
This section increases the criminal penalty for voter
intimidation from one year to five years. The Committee
believes that the existing penalty for voter intimidation does
not adequately reflect the seriousness of this crime. Noting
that voter intimidation and deceptive practices are different
means of attempting to keep voters from reaching the polls and
casting ballots for the candidate of their choice, the
Committee is of the view that voter intimidation and deceptive
election practices are crimes of equal seriousness.
This section also requires the United States Sentencing
Commission to review and, if necessary, amend the Federal
Sentencing Guidelines for persons convicted under this section.
Section 4. Reporting of false election information
Section 4(a) provides that individuals who have received or
have knowledge of deceptive practices prohibited by Section 3
can report such information to the Attorney General.
Section 4(b) states that if a report provides a reasonable
basis to find a violation of the law, the Attorney General
shall pursue ``any appropriate'' criminal prosecution or civil
action.\1\ This section preserves the Attorney General's
discretion in assessing whether to undertake a criminal or
civil response to a possible legal violation as well as what
response is appropriate.
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\1\Contrary to the claims made in the Additional Views of Senators
Kyl, Graham, Cornyn, and Brownback, Section 4(b) of the bill requires
the Attorney General to pursue only any ``appropriate'' action if a
citizen's report of false election information provides a ``reasonable
basis'' to find a violation of law. The determination of what, if
anything, constitutes an ``appropriate criminal prosecution or civil
action'' remains within the Attorney General's discretion. To the
extent that this bill affects prosecutorial choices, the Committee
notes that Congress has frequently legislated in ways that affect
prosecutorial discretion. See 28 U.S.C. Sec. 530(B) (2000) (restricting
Federal prosecutors' discretion by subjecting them to state ethical
rules); Pub. L. No. 105-119, Sec. 617, 111 Stat. 2440, 2519 (1997)
(penalizing certain prosecutorial actions by allowing courts to award
attorneys' fees to victims of vexatious, frivolous or bad faith
prosecutions); 18 U.S.C. Sec. 6002 (2000) (limiting the extent to which
congressional testimony can be used by prosecutors against the witness
in a criminal case); Pub. L. No. 95-521, 92 Stat. 1824 (1978) (limiting
prosecutorial discretion to not bring charges by requiring that the
Attorney General conduct a preliminary investigation of persons covered
by the statute); 28 U.S.C. Sec. 591 (Supp. IV, 2001-2005) (requiring
the Attorney General to conduct an investigation whenever he has
received ``sufficient information'' that a high-ranking US official may
have violated certain Federal criminal laws).
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Section 4(b) also specifies that the Attorney General shall
refer to the Civil Rights Division only those matters that
would otherwise fall under the Civil Rights Division's
jurisdiction.\2\ Thus, the Committee intends that the Attorney
General will assign enforcement of this legislation in a way
that does not substantially add to the workload of the Civil
Rights Division and does not limit that Division's resources
available for enforcing other important voting rights laws,
such as the Voting Rights Act. Rather, the Committee expects
that the legislation would primarily be enforced by other
Divisions of the Department of Justice. The Attorney General's
role in defining the jurisdiction of the Divisions of the
Department of Justice is preserved under this bill, because a
referral to the Civil Rights Division under this bill is
determined by how that Division's jurisdiction is otherwise
defined, either by a preexisting statute or by the Attorney
General.
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\2\Senators Kyl, Graham, Cornyn, and Brownback mischaracterize the
effect of Section 4(b) in their Additional Views. Section 4(b) does not
require that all matters under this bill be referred to the Civil
Rights Division. On the contrary, the bill limits the referrals to the
Civil Rights Division only to cases that are otherwise under that
Division's jurisdiction, such as cases that involve discrimination or
intimidation on the basis of race. In this way, the bill provides for
the preservation of the existing arrangement within the Department of
Justice, under which the Criminal Division handles most criminal
matters related to voting, and seeks to ensure that the Civil Rights
Division will continue to maintain its primary focus on voting matters
involving unlawful discrimination.
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This section specifies that no investigation or legal
action may begin until after the election, unless the Attorney
General reasonably decides that investigation or legal action
before an election will not inhibit voting and is necessary
because delaying investigation until after the election will
substantially harm the government's ability to enforce the bill
(or, as provided by Section 5, is necessary to determine the
need for or scope of corrective action). Due to the sensitive
nature of any investigation or punitive action under the
criminal or civil provisions of the bill, the Committee intends
to clarify that the Attorney General's actions under the bill
should be guided by a presumption that any investigation or
action prior to an election is discouraged.
Section 5. Corrective action
Whereas earlier sections of the bill provide for civil and
criminal enforcement against violators, Section 5 creates a
mechanism for affirmatively correcting false information in
order to assist affected voters in exercising their right to
vote.\3\ Section 5(a) requires the Attorney General to
determine whether false information has been disseminated in
violation of Section 3.
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\3\It is not unusual for Congress to require the Department of
Justice to perform a wide range of non-prosecutorial functions,
including election monitoring to ensure voting rights are protected,
mediation and conflict resolution through the Community Relations
Service of the Civil Rights Division, the collection and analysis of
data to track and inform public policy choices, and compliance with
ethics and employment laws, among others.
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Under Section 5(a), if the Attorney General determines that
the information communicated reasonably falls within the
parameters of the prohibited information, the Attorney General
shall undertake all necessary efforts to provide correct
information to all voters who have been affected by the false
information.\4\ The corrective action requirement in this
section of the bill poses no threat to prosecutorial discretion
because the required action under this section does not involve
prosecution and is limited to correcting false information in
order to enable the effective exercise of the fundamental right
to vote. The term ``all effective measures'' is intended to
encompass any means of communication effective in reaching
voters who were affected by a prior communication of false
information. In many instances, the Department of Justice
therefore may find it most effective to communicate corrective
information to voters in the same format and to the same extent
as false information was communicated. Moreover, because the
goal of this section is to aid voters in overcoming any effects
of false information, the Committee intends that the Attorney
General should take corrective action under this section even
if the perpetrator or suspected perpetrator has already made a
voluntary effort to provide correct information following the
initial communication of false information.
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\4\Contrary to the misconceptions advanced in the Additional Views,
Section 5 does not require any civil or criminal action but rather
directs the Attorney General to take non-prosecutorial corrective
action in a limited set of cases. Providing the public with correct
information so that a fundamental right can be exercised is clearly
distinct from the traditional prosecutorial duties of charging and
prosecuting a crime.
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Section 5(a) further provides that the Attorney General's
corrective action shall only address matters of time of voting,
place of voting, qualifications for voter eligibility, or
restrictions on voter eligibility. This list of topics for
corrective communications is intended to be exhaustive. The
Committee recognizes that the bill excludes certain false
information from the corrective action section that falls
within the criminal and civil prohibitions in the bill. The
Committee thereby seeks to minimize both the burden on the
Department of Justice and the risk that corrective action may
influence the outcome of an election (beyond the impact of
counteracting the false information that was communicated). The
Committee intends that the requirement to distribute corrective
information regarding ``time and place'' shall include issues
such as absentee voting, vote-by-mail, and telephonic voting.
Information on voter eligibility shall, at a minimum, be
interpreted to include information on the kinds of
identification that must be presented in order to vote or
register to vote, information on the use and availability of
absentee ballots, and information on whether and to what extent
a person's criminal history or immigration status affects his
or her eligibility to vote.
This section specifies, and the Committee intends, that the
correct information distributed by the Attorney General should
be limited to the information necessary to counteract the false
information that was communicated. The overbroad or unnecessary
distribution of information by the Department of Justice would
create the appearance that the Department is unduly involved in
political matters and presents a risk of inadvertently
discouraging voting or otherwise influencing the outcome of an
election. Thus, it is the Committee's view that corrective
action should be limited to information enumerated in this
section and be tailored as narrowly as possible in order to
respond to the nature and scope of the original distribution of
false information. In particular, information distributed by
the Attorney General pursuant to this section should not
include the suspected perpetrator's identity, or any other
information that might influence the outcome of an election
(beyond the impact of counteracting the false information that
was communicated).
This section includes a materiality requirement so that the
Attorney General need only take corrective action if there is
reasonable basis to believe that false information as described
in the bill has been communicated and such communication might
materially hinder any citizen's meaningful exercise of the
right to vote. False information materially hinders the
meaningful exercise of the right to vote if there is a
significant likelihood that such information will negatively
affect voters' opportunity to vote for the candidates of their
choice or to access to the polls at the required place and
time, cast their votes, and have their votes counted in a
Federal election or primary.
The Attorney General may not undertake any investigation
related to a report of false information before the election to
which the false information pertains, unless the Attorney
General reasonably believes that such investigation will not
inhibit voting and is necessary to determine the need for or
scope of corrective action (or, as provided by Section 4, is
necessary because delaying investigation until after the
election will substantially harm the government's ability to
enforce the bill). As in the civil and criminal sections of the
bill, due to the sensitive nature of any such investigation,
the Committee intends to clarify that the Attorney General's
actions under the bill should be guided by a presumption that
any investigation or action prior to an election is
discouraged.
Section 5(b) states that if an individual has provided the
Attorney General with information showing reasonable cause to
believe a violation of this law has occurred, and the Attorney
General fails to take corrective action within 72 hours (or
sooner if necessary to ensure timely corrective action before
an election), this section provides the individual with the
right to apply to a U.S. District Court for an order requiring
the Attorney General to take timely corrective action. The
Committee believes that the time limit in this section is
appropriate given that the right to vote is fundamental and
that deceptive practices are frequently perpetrated in the days
and hours immediately preceding an election. The Committee
notes that Congress has elsewhere empowered citizens to seek
judicial review of unreasonable executive inaction. For
example, Congress may provide for ``citizen suits'' against
administrative or other officials who fail to enforce laws, and
the Administrative Procedure Act permits a person aggrieved by
agency action to request that a reviewing court ``compel agency
action unlawfully withheld or unreasonably delayed.''\5\
---------------------------------------------------------------------------
\5\5 U.S.C.Sec. 706(1) (2007). The U.S. Supreme Court in Heckler v.
Chaney, 470 U.S. 821 (1985), held that an agency's decision not to
enforce a statute is presumptively unreviewable but stated that
Congress may overcome this presumption if it supplies guidelines that
circumscribe an agency's discretion in exercising its enforcement
powers. Consistent with the principles set out in Heckler, this bill
provides for expedited judicial review to determine whether a
Department of Justice decision not to take corrective action accords
with the standards provided in Section 5(b) of the bill.
---------------------------------------------------------------------------
The Attorney General must also provide the relevant
committees of Congress with a report regarding the procedures
and standards intended to be used to provide the corrective
action required by this section by January 1 of each year in
which there is a Federal election. If the Attorney General
makes any changes to these procedures and standards, the
Attorney General must promptly notify the relevant committees
of Congress of such changes.
The Attorney General should consult with the Election
Assistance Commission, civil rights organizations, voting
rights groups, and State and local election officials in
developing these procedures and standards.
This section requires the Attorney General to work with the
Federal Communications Commission and the Election Assistance
Commission to study the feasibility of using public service
announcements, the emergency alert system or other forms of
public broadcast to provide the corrective information required
by this section. This feasibility report should be completed
within 90 days of enactment.
This section authorizes such sums as may be necessary to
carry out this section.
Section 6. Reports to Congress
This section requires the Attorney General to report to
Congress not later than 90 days after each Federal general
election the allegations of false information received pursuant
to this section, as well as detailed information on the types
of reports received and the corrective actions taken, if any.
The report must provide information regarding any primary or
run-off election that has occurred since the prior report to
Congress. The Attorney General may withhold from the report any
non-public information that the Attorney General reasonably
determines would infringe on the rights of a criminal suspect
or defendant or would compromise an on-going investigation or
prosecution.
Section 7. Severability
This section provides that if any provision of this Act is
found unconstitutional, the remainder of the Act remains in
force.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S. 453,
the following estimate prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
September 21, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 453, 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.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 453--Deceptive Practice and Voter Intimidation Prevention Act of
2007
CBO estimates that implementing S. 453 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 that act any legislative provisions that
enforce the Constitutional rights of individuals. CBO has
determined that S. 453 would fall within that exclusion because
it would protect voting rights. Therefore, CBO has not reviewed
the bill for mandates.
S. 453 would establish a new crime for attempting to
deceive voters in Federal elections and would require the
Department of Justice to 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 S. 453 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 required by the bill. Any such
costs would be subject to the availability of appropriated
funds.
Because those prosecuted and convicted under S. 453 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.
On April 11, 2007, CBO transmitted a cost estimate for H.R.
1281, the Deceptive Practices and Voter Intimidation Prevention
Act of 2007, as ordered reported by the House Committee on the
Judiciary on March 29, 2007. The bills are similar and the cost
estimates are identical.
The CBO staff contact for this estimate is Mark Grabowicz.
This estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 453.
VI. Conclusion
Enactment of the Deceptive Practices and Voter Intimidation
Prevention Act of 2007, S. 453, addresses the compelling
national interest in ensuring the integrity of Federal
elections by protecting voting rights of vulnerable members of
the electorate, including citizens residing in minority and
low-income communities. The legislation provides for civil and
criminal penalties against persons who attempt to deceive
citizens in order to prevent them from exercising the right to
vote or from voting for the candidate of their choice.
Deceptive communications found materially to hinder any
citizen's right to vote require that the Attorney General
undertake effective corrective action to counteract the false
information that was communicated.
VII. ADDITIONAL VIEWS OF SENATORS KYL, GRAHAM, CORNYN, AND BROWNBACK
It is our understanding that the Justice Department, though
it has not yet issued an official Views Letter for this bill,
will eventually endorse its overall purpose of proscribing
certain election-related deceptive conduct. Although much of
the conduct prohibited by this bill already arguably is
proscribed by current statutes such as 18 U.S.C. Sec. 241, this
bill will provide clear and specific authority to prosecute
efforts to deceive voters about the time and place and
qualifications for voting. We, too, support the overall purpose
of this bill.
We also expect, however, that the Justice Department will
vigorously object to several provisions of this bill, and we do
not need to read the Department's forthcoming Views Letter to
know why. Several of the bill's restrictions on prosecutorial
or other executive discretion are utterly unprecedented and
would be a clear violation of the separation of powers.
Congress simply cannot command the executive (or authorize the
courts to command the executive) to carry out functions that
are plainly within the realm of discretionary executive
decisionmaking authority. The tasks that this bill commands the
Justice Department to carry out are not ministerial in nature.
These tasks are in the heartland of those decisions that are
made on the basis of factors that only the executive can
evaluate, such as the availability of enforcement resources and
the prioritization of the use of those resources. Congress has
never before ordered the executive branch bring an enforcement
action in every single case that falls within a statute's
proscriptions, or authorized the federal courts to issue such
orders. It should not begin doing so in this bill.
The offending provisions of this bill are sections 4 and 5,
which would require the Attorney General to refer cases for
prosecution and take ``corrective action'' to rebut false
voting information that has been disseminated to voters.
Section 4(b) requires the Attorney General to refer a case to
the Civil Rights Division for prosecution if he finds that
there is a ``reasonable basis'' for concluding that the law has
been broken. Section 5(b) authorizes private litigants to bring
an action in federal court seeking an order that the Attorney
General take ``corrective action'' rebutting false election
information if the Attorney General does not act on a complaint
within 72 hours after it is submitted to the Justice
Department.
Both of these ``enforcement'' provisions are severe
intrusions on prosecutorial discretion. The first strips from
the Attorney General the authority to decide for himself
whether a case is worth pursuing--if he concludes that there is
a ``reasonable basis'' for a complaint, he must refer the case
to the Civil Rights Division. The second provision effectively
delegates to a federal district judge the decision whether a
citizen complaint about allegedly false voting information
merits ``corrective action'' by the Attorney General.
Typically when committee reports such as this one are first
circulated as a draft in the committee, Senators are given a
few extra days to submit additional or minority views. After
those additional views are submitted, proponents of the bill
usually will amend the committee report--often through the
addition of footnotes--to respond to those additional views. In
this case, we are curious to see whether the proponents of this
bill will be able to identify any precedent whatsoever for the
intrusions on executive discretion in sections 4(b) and 5(b) of
this bill. We doubt that the final committee report will be
able to identify even one statute in which Congress has ordered
the Justice Department to bring an enforcement action in every
single case that falls within the statute's proscriptions, or
in which it has delegated enforcement decisionmaking authority
to the federal courts.
The executive branch needs to be allowed to decide whether
a particular infraction of a statute merits enforcement action.
Consider the practical implications of restricting such
discretion in the context of this bill. The Civil Rights
Division has a limited number of lawyers, and those lawyers are
charged with enforcing a large number of other statutes. If a
clear but minor violation of this bill's proscriptions has
occurred--for example, incorrect information about poll-opening
times has been issued, but did not reach many voters--should a
Department attorney necessarily abandon every other case that
he is assigned to in order to prosecute that incident? What if
the facts of the case are not so clear, and the attorney is not
certain that he will obtain a conviction? Should the attorney
nevertheless be forced to prosecute the case? And should a
judge be allowed to decide on the Justice Department's behalf
whether ``corrective action'' should be taken?
Advocates of these provisions might also consider what
precedent they are setting in the event that sections 4 and 5
of this bill are enacted into law and are upheld by the courts.
How do they feel about a bill that would require the Justice
Department to prosecute every single child-pornography case
that is brought to its attention? Or every illegal-entry
immigration case? What about cases of providing material
support to terrorism?
The impossibility of extending such mandates across the
criminal statutes should be apparent to everyone. Congress does
not decide how enforcement resources are used. It is the
President, his appointees, and career executive employees who
make those decisions.
Several other provisions of this bill are problematic as
well. The requirement that the Justice Department prosecute
false candidate endorsements is destined to embroil the
Department in political controversies and to subject it to
accusations of political favoritism. Campaign speech and
campaign tactics have traditionally remained outside the
purview of the criminal laws. Nor would a campaign to punish
``false'' statements about candidates be a limited venture: we
doubt that there are very many members of the Senate or House
who do not believe that during some election someone said
something about them that is false. We think that it is
unlikely that the Department will be enthusiastic about this
committee's invitation to jump down this rabbit hole.
We are also curious to see what the lawyers who will be
charged with enforcing this bill think about some of the
language that it employs. It is unclear to us, for example, how
those lawyers are supposed to prove that a defendant intended
to prevent a voter ``from voting for the candidate of such
person's choice.'' It is one thing to prove what a defendant
did and intended. It is another to prove what the victim of the
offense (who likely will exist only as a hypothetical voter)
would have intended to do absent the deceiving information. How
is a federal prosecutor (or judge or jury) supposed to know who
is the real candidate of that voter's choice? Does the jury
employ a Marxian analysis and subtract the voter's false
consciousness to determine who the voter really wanted to vote
for? How can a court ever say that a voter's choice was anyone
other than the candidate for whom the voter actually voted?
None of us would want to be the first lawyer to prosecute one
of these cases, and we hope that the Justice Department will
suggest a more elegant way of defining this offense.
Again, we note that we support the overall purpose of this
bill to expressly prohibit particular deceptive election-
related practices. However, some of the parts of this bill
clearly require adjustment, and we think that it is inevitable
that the bill would benefit from the views of the Justice
Department attorneys who practice in this field.
Jon Kyl.
Lindsey Graham.
John Cornyn.
Sam Brownback.
VIII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 453, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
CHAPTER 29--ELECTIONS AND POLITICAL ACTIVITIES
* * * * * * *
Sec. 594. Intimidation of Voters
[Whoever] (a) Intimidation.--Whoever intimidates,
threatens, coerces, or attempts to intimidate, threaten, or
coerce, any other person by any means, including by means of
written, electronic or telephonic communications, 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] at any general, primary,
run-off or special election held solely or in part for the
purpose of electing such a candidate, shall be fined under this
title or imprisoned not more than [one year] 5 years, or both.
(b) Deceptive Acts.--
(1) Prohibition.--
(A) In general.--It shall be unlawful for any
person, within 60 days before an election
described in subparagraph (B), to communicate
or cause to be communicated information
described in subparagraph (C), or produce
information described in subparagraph (C) with
the intent that such information be
communicated, if such person--
``(i) knows such information to be
false; and
``(ii) has the intent to prevent
another person from exercising the
right to vote or from voting for the
candidate of such other person's choice
in an election described in
subparagraph (B).
(B) Election described.--An election
described in this subparagraph is any general,
primary, run-off, or special election held
solely or in part for the purpose of electing a
candidate 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.
(C) Information described.--Information is
described in this subparagraph if such
information is regarding--
(i) the time, place, or manner of any
election described in subparagraph (B);
(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; or
(iii) the explicit endorsement by any
person or organization for the upcoming
election of a candidate to any office
described in subparagraph (B).
(2) Penalty.--Any person who violates paragraph (1)
shall be fined not more than $100,000, imprisoned not
more than 5 years, or both.
(c) Attempt.--
(1) Attempt.--Any person who attempts to commit any
offense described in subsection (a) or (b) shall be
subject to the same penalties as those prescribed for
the offense that the person attempted to commit.
TITLE 42, UNITED STATES CODE
* * * * * * *
CHAPTER 20--ELECTIVE FRANCHISE
* * * * * * *
Sec. 1971. Voting Rights
(a) * * *
* * * * * * *
(b) Intimidation, Threats, or Coercion.--
[No person] (1) No person, whether acting under color
of law or otherwise, shall intimidate, threaten,
coerce, or attempt 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, or Member of the House of
Representatives, Delegates or Commissioners from the
Territories or possessions, at any general, special, or
primary election held solely or in part for the purpose
of selecting or electing any such candidate.
(2)(A) No person, whether acting under color of law
or otherwise, shall, within 60 days before an election
described in subparagraph (B), communicate or cause to
be communicated information described in subparagraph
(C), or produce information described in subparagraph
(C) with the intent that such information be
communicated, if such person--
(i) knows such information to be false; and
(ii) has the intent to prevent another person
from exercising the right to vote or from
voting for the candidate of such other person's
choice in an election described in subparagraph
(B).
(B) An election described in this subparagraph is any
general, primary, run-off, or special election held
solely or in part for the purpose of electing a
candidate 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.
(C) Information is described in this subparagraph if
such information is regarding--
(i) the time, place, or manner of any
election described in subparagraph (B);
(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; or
(iii) the explicit endorsement by any person
or organization for the upcoming election of a
candidate to any office described in
subparagraph (B).