PROHIBITING THE USE OF DECEPTIVE PRACTICES AND VOTER INTIMIDATION TACTICS IN FEDERAL ELECTIONS: S. 1994
Mr. Chairman, thank you for calling this hearing today. In particular I want to thank Senator Schumer, whom I have been pleased to work with on this legislation since I first came to the Senate in 2007.
The use of deceptive practices and voter intimidation tactics are not new. After having served in elective office in both Annapolis and Washington, I understand that campaigns are a rough and tumble business. I expect that candidates will question and criticize my record and judgment, and voters ultimately have a right to choose their candidate.
What goes beyond the pale, however, is when a campaign uses deceptive tactics to deliberately marginalize and disenfranchise minority voters. These tactics seem to deliberately target minority neighborhoods and are blatant attempts to reduce minority turnout.
In previous elections we have seen deceptive literature distributed which gave the wrong date for the election, the wrong times when polling places were open, and even suggested that people could be arrested if they had unpaid parking tickets or unpaid taxes and tried to vote. Other literature purported to give a different general election day for Republicans and Democrats.
Mr. Chairman, this is not a new issue for the Judiciary Committee. In fact, it was over 5 years ago that the Judiciary Committee last held a hearing on this specific subject. I chaired that hearing in May 2007, and at that time we took testimony from Senator Obama and Senator Schumer on this subject. After the hearing, this Committee favorably reported the legislation to the floor. And the full House of Representatives passed similar companion legislation by voice vote. But the full Senate failed to act.
Let me also say that I am pleased that the Judiciary Committee, and in particular Senator Durbin and the Constitution Subcommittee, has continued to shine a spotlight efforts to restrict the franchise, including measures in various states designed to make it more difficult to register to vote and exercise one’s constitutional right to vote.
It has been nearly a century and a half since Congress and the states ratified the Fifteenth Amendment to the Constitution in 1870, which states 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 article by "appropriate legislation." African-Americans suffered through nearly another 100 years of discrimination at the hands of Jim Crow laws and regulations, designed to make it difficult if not impossible for African-Americans to register to vote due to literacy tests, poll taxes, and outright harassment and violence. It took Congress and the states nearly another century until we adopted the Twenty-Fourth Amendment to the Constitution in 1964, which prohibited poll taxes or any tax on the right to vote. In 1965 Congress finally enacted the Voting Rights Act, which once and for all was supposed to prohibit discrimination against voters on the basis of race or color.
It is time for Congress to once again take action to stop the latest reprehensible tactics that are being used against African-American, Latino, and other minority voters to interfere with (a) their right to vote or (b) their right to vote for the candidate of their choice, as protected in Constitution and in civil rights statutes. These tactics undermine and corrode our very democracy and threaten the very integrity of our electoral process.
Our 2007 hearing record contains numerous examples of deceptive practices, so I will not repeat them in detail here. Suffice it to say that the hearing record contains examples including: listing the wrong day for the election; promoting false endorsements of candidates, including from my own election as Senator in 2006; telling Republicans to vote on Tuesday and Democrats to vote on Wednesday; warning recent immigrants not to vote due to the possibility of deportation; warning voters with unpaid tickets parking not to vote, or face prison terms and loss of custody of their children.
I do want to bring to the committee’s attention more recent examples of the use of deceptive practices since our 2007 hearing.
In 2008, Ohio residents reported receiving misleading automated calls giving voters incorrect information about the location of their polling places. In the same year, fliers were distributed in predominantly African-American neighborhoods of Philadelphia, Pennsylvania, falsely warning that people with outstanding warrants or unpaid parking tickets could be arrested if they showed up at the polls on Election Day. In the same year, messages were sent to users of the social media website Facebook falsely stating that the election had been postponed a day.
Students at some universities, including Florida State University, received text messages also saying the election had been postponed for a day. In the same year, a local registrar of elections in Montgomery County, Virginia, issued two releases incorrectly warning that students at Virginia Tech who registered to vote at their college could no longer be claimed as dependents on their parents' tax returns and could lose scholarships or coverage under their parents' car and health insurance.
In the 2010 election, in African-American neighborhoods of Houston, Texas, a group called the `Black Democratic Trust of Texas' distributed flyers falsely warning that a straight-ticket vote for the Democratic Party would not count and that a vote just for a single Democratic candidate would count for the entire Democratic ticket.
In the 2010 election, in my own state of Maryland, a political consultant paid for robocalls on election night to thousands of African-American households in the state’s two largest majority-black jurisdictions that said, while the polls were still open, `I'm calling to let everyone know that Governor O'Malley and President Obama have been successful. Our goals have been met. The polls were correct . . . We're okay. Relax. Everything is fine. The only thing left is to watch on TV tonight.'. These Maryland robocalls led to several criminal convictions, including jail time and civil fines for some of the parties involved.
The legislation I have introduced with Senator Schumer would: (1) prohibit deceptive practices in federal elections; (2) create a civil right of action and criminal penalties for violations; (3) allow for corrective action; and (4) require regular reporting to Congress.
This legislation is narrowly tailored – consistent with the First Amendment – to apply only to a small category of communications within 90 days before a federal election. Under the legislation, prohibited communications include false information on: the time or place of the election; explicit endorsements; voter qualifications; criminal penalties associated with voting; and a voter’s registration status or eligibility.
The legislation only criminalizes distribution of these types of false voting information when an individual knows such information to be materially false, and an individual has the intent to mislead, discourage, or prevent another person from exercising their right to vote.
This legislation properly respects the First Amendment's guarantee of freedom of speech while recognizing the power of Congress to prohibit the use of racially discriminatory tactics in elections under the Fifteenth Amendment, Voting Rights Act, and the general power of Congress under Article I, Section 4 of the Constitution to regulate the "times, places, and manner" of federal elections.
This legislation creates tough new criminal and civil penalties for those who create and distribute this type of false and deceptive literature. The bill authorizes a process to distribute accurate information to voters who have been exposed to false and deceptive communications. The bill requires the Attorney General to submit to Congress a report compiling and detailing any allegations of false and deceptive election communications.
I am very pleased that the Department of Justice is supportive of our efforts and this legislation. In December 2011, Attorney General Eric Holder gave a major voting rights speech at the LBJ Library and Museum in Austin, Texas.
Attorney General Holder acknowledged, just before our legislation was introduced, that deceptive practices are still being used, and said:
“Over the years, we’ve seen all sorts of attempts to gain partisan advantage by keeping people away from the polls – from literacy tests and poll taxes, to misinformation campaigns telling people that Election Day has been moved, or that only 1 adult per household can [vote]…”
“In an effort to deter and punish such harmful [deceptive voting] practices, during his first year in the U.S. Senate, President Obama introduced legislation that would establish tough criminal penalties for those who engage in fraudulent voting practices – and would help to ensure that citizens have complete and accurate information about where and when to vote. Unfortunately, this proposal did not move forward. But I’m pleased to announce that…Senators Charles Schumer and Ben Cardin [have] re-introduce[d] this legislation, in an even stronger form. I applaud their leadership – and I look forward to working with them as Congress considers this important legislation.”
Our former colleague Senator Ted Kennedy often said that civil rights was part of the great unfinished business of America. I ask this committee to therefore to consider and favorably report this legislation once again to the full Senate. Thank you.