Short title

This Act may be cited as the

Deceptive Practices and Voter Intimidation Prevention Act of 2007

Findings

Congress makes the following findings: (1)The right to vote is a fundamental right accorded to United States citizens by the Constitution and the unimpeded exercise of this right is essential to the functioning of our democracy. (2)Historically, certain citizens, especially racial minorities, were prevented from voting because of significant barriers such as literacy tests, poll taxes, and property requirements. (3)Some of these barriers were removed by the 15th, 19th, and 24th Amendments to the Constitution. (4)Despite the elimination of some of these barriers to the polls, the integrity of today’s elections is threatened by newer tactics aimed at suppressing voter turnout. These tactics include deceptive practices, which involve the dissemination of false information intended to prevent voters from casting their ballots, intimidate the electorate, and undermine the integrity of the electoral process. (5)Denials of the right to vote, and deceptive practices designed to prevent members of racial minorities from exercising that right, are an outgrowth of discriminatory history, including slavery. Measures to combat denials of that right are a legitimate exercise of congressional power under the 13th, 14th, and 15th Amendments to the United States Constitution. (6)Shortly before the 1990 midterm Federal elections, 125,000 voters in North Carolina received postcards providing false information about voter eligibility and a warning about criminal penalties for voter fraud. Ninety-seven percent of the voters who received postcards were African American. (7)In 2004, Native American voters in South Dakota were prevented from voting after they did not provide photographic identification upon request, despite the fact that they were not required to present such identification in order to vote under State or Federal law. (8)In the 2006 midterm election, 14,000 Latino voters in Orange County, California received mailings from the California Coalition for Immigration Reform, warning them in Spanish that if you are an immigrant, voting in a federal election is a crime that can result in incarceration…. In fact, an immigrant who is a naturalized citizen of the United States has the same right to vote as any other citizen. (9)In the same 2006 election, some Virginia voters received automated phone messages falsely warning them that the Virginia Elections Commission had determined they were ineligible to vote and that they would face severe criminal penalties if they tried to cast a ballot. (10)In 2006 in Maryland, certain candidates for Governor and United States Senator distributed fliers in predominantly African-American neighborhoods falsely claiming that the candidates had been endorsed by their opponents' party and by prominent figures who had actually endorsed the opponents of the candidates. (11)Those responsible for these and similar efforts should be held accountable, and civil and criminal penalties should be available to punish anyone who seeks to keep voters away from the polls by providing false information. (12)Moreover, the Federal Government should help correct such false information in order to assist voters in exercising their right to vote without confusion and to preserve the integrity of the electoral process. (13)The Federal Government has a compelling interest in protecting voters from confusion and undue influence and in preserving the integrity of its election process. Burson v. Freeman, 504 U.S. 191, 199 (1992). (14)The First Amendment does not preclude the regulation of some intentionally false speech, even if it is political in nature. As the Supreme Court of the United States has recognized, “[t]hat speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected … . Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.”. Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

Prohibition on deceptive practices in Federal elections

(a)

Civil action

(1)

In general

Subsection (b) of section 2004 of the Revised Statutes (42 U.S.C. 1971(b)) is amended— (A)by striking No person and inserting the following:

(1)No person

; and

(B)by inserting at the end the following new paragraph:

(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 in an election described in subparagraph (C). (B)An election described in this subparagraph is 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. (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 by ineligible voters; or (II)information regarding a voter's registration status or eligibility; (iii)the political party affiliation of any candidate running in a closed primary election for any office described in subparagraph (B) if the communication of the information also contains false information described in clause (i) or (ii); or (iv)the explicit endorsement by any person or organization of a candidate running for any office described in subparagraph (B).

(2)

Private right of action

(A)

In general

Subsection (c) of section 2004 of the Revised Statutes (42 U.S.C. 1971(c)) is amended— (i)by striking Whenever any person and inserting the following:

(1)Whenever any person

; and

(ii)by adding at the end the following new paragraph:

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

(B)

Conforming amendments

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

Criminal penalty

(1)

In general

Section 594 of title 18, United States Code, is amended— (A)by striking Whoever and inserting the following:

(a)

Intimidation

Whoever

; and

(B)by adding at the end the following:

(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 in an election described in subparagraph (C). (B)

Election described

An election described in this subparagraph is 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. (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 by ineligible voters; or (II)information regarding a voter's registration status or eligibility; (iii)the political party affiliation of any candidate running in a closed primary election for any office described in subparagraph (B) if the communication of the information also contains false information described in clause (i) or (ii); or (iv)the explicit endorsement by any person or organization of a candidate running for 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 and conspiracy

(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. (2)

Conspiracy

If 2 or more persons conspire to commit an offense described in subsection (a) or (b), and 1 or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than 5 years.

(2)

Modification of penalty for voter intimidation

Section 594(a) of title 18, United States Code, as amended by paragraph (1), is amended— (A)by inserting by any means, including by means of written, electronic, or telephonic communications, after any other person; and (B)by striking one year and inserting 5 years. (3)

Sentencing guidelines

(A)

Review and Amendment

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

Authorization

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

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act.

Reporting false election information

(a)

Reporting

Any person may report to the Attorney General any communication of, or the causation of any communication of, information, or the production of information with the intent that such information be communicated, if the information is— (1)information that is described in— (A)subparagraph (C) of section 2004(b)(2) of the Revised Statutes (42 U.S.C. 1971(b)(2)(C)); or (B)subparagraph (C) of section 594(b)(1)(C) of title 18, United States Code; and (2)false. (b)

Corrective action

(1)

In general

Immediately after receiving a report under subsection (a), the Attorney General shall consider and review such report and, if the Attorney General determines that there is a reasonable basis to find that false information described in subsection (a)(1) has been communicated or caused to be communicated, or has been produced with the intent that such information be communicated, the Attorney General shall— (A)undertake all effective measures necessary to provide correct information to voters affected by the false information; (B)refer any matter under the jurisdiction of the Civil Rights Division of the Department of Justice to such division for prosecution; and (C)refer the matter to the appropriate Federal and State authorities for criminal prosecution or civil action after the election. (2)

Regulations

(A)

In general

The Attorney General shall promulgate regulations regarding the methods and means of corrective actions to be taken under paragraph (1). Such regulations shall be developed in consultation with the Election Assistance Commission, civil rights organizations, voting rights groups, State and local election officials, voter protection groups, and other interested community organizations. (B)

Study

(i)

In general

The Attorney General, in consultation with the Federal Communications Commission and the Election Assistance Commission, shall conduct a study on the feasibility of providing the corrective information under paragraph (1) through public service announcements, the emergency alert system, or other forms of public broadcast. (ii)

Report

Not later than 180 days after the date of the enactment of this Act, the Attorney General shall submit to Congress a report detailing the results of the study conducted under clause (i). (c)

Reports to Congress

(1)

In general

Not later than 90 days after any primary, general, or run-off election for Federal office, the Attorney General shall submit to the appropriate committees of Congress a report compiling and detailing any allegations of false information submitted pursuant to subsection (a) and relating to such election. (2)

Contents

(A)

In general

Each report submitted under paragraph (1) shall include— (i)detailed information on specific allegations of deceptive tactics; (ii)statistical compilations of how many allegations were made and of what type; (iii)the geographic locations of and the populations affected by the alleged deceptive information; (iv)the status of the investigations of such allegations. (v)any corrective actions taken in response to such allegations; (vi)the rationale used for any corrective actions or for any refusal to pursue an allegation; (vii)the effectiveness of any such corrective actions; (viii)whether a Voting Integrity Task Force was established with respect to such election, and, if so, how such task force was staffed and funded; (ix)any referrals of information to other Federal, State, or local agencies; (x)any suit instituted under section 2004(b)(2) of the Revised Statutes (42 U.S.C. 1971(b)(2)) in connection with such allegations; and (xi)any criminal prosecution instituted under section 594(b) of title 18, United States Code in connection with such allegations. (B)

Exception

The Attorney General may withhold any information that the Attorney General determines would unduly interfere with an on-going investigation. (3)

Report made public

On the date that the Attorney General submits the report required under paragraph (1), the Attorney General shall also make the report publicly available through the Internet and other appropriate means. (d)

Delegation of duties

(1)

In general

The Attorney General may delegate the responsibilities under this section to a Voting Integrity Task Force established under paragraph (2). (2)

Voting integrity task force

(A)

In general

The Attorney General may establish a Voting Integrity Task Force to carry out the requirements of this section with respect to any general, primary, run-off, or special election for Federal office. (B)

Composition

Any Voting Integrity Task Force established under paragraph (1) shall be under the direction of the Assistant Attorney General for the Civil Rights Division and the Assistant Attorney General for the Criminal Division, jointly. (e)

Federal office

For purposes of this section, the term Federal office means 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 of the United States. (f)

Authorization of appropriations

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

Severability

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

Short title

This Act may be cited as the

Deceptive Practices and Voter Intimidation Prevention Act of 2007

Findings

Congress makes the following findings: (1)The right to vote through casting a ballot for one's preferred candidate is a fundamental right accorded to United States citizens by the Constitution and the unimpeded exercise of this right is essential to the functioning of our democracy. (2)Historically, certain citizens, especially racial minorities, were prevented from voting because of significant barriers such as literacy tests, poll taxes, and property requirements. (3)Some of these barriers were removed by the 15th, 19th, and 24th Amendments to the Constitution. (4)Despite the elimination of some of these barriers to the polls, the integrity of today’s elections is threatened by newer tactics aimed at suppressing voter turnout. These tactics include deceptive practices, which involve the dissemination of false information intended to prevent voters from casting their ballots, prevent voters from voting for the candidate of their choice, intimidate the electorate, and undermine the integrity of the electoral process. (5)Denials of the right to vote, and deceptive practices designed to prevent members of racial minorities from exercising that right, are an outgrowth of discriminatory history, including slavery. Measures to combat denials of that right are a legitimate exercise of congressional power under the 13th, 14th, and 15th Amendments to the United States Constitution. (6)Shortly before the 1990 midterm Federal elections, 125,000 voters in North Carolina received postcards providing false information about voter eligibility and a warning about criminal penalties for voter fraud. Ninety-seven percent of the voters who received postcards were African American. (7)In 2004, Native American voters in South Dakota were prevented from voting after they did not provide photographic identification upon request, despite the fact that they were not required to present such identification in order to vote under State or Federal law. (8)In the 2006 midterm election, 14,000 Latino voters in Orange County, California received mailings from the California Coalition for Immigration Reform, warning them in Spanish that if you are an immigrant, voting in a federal election is a crime that can result in incarceration…. In fact, an immigrant who is a naturalized citizen of the United States has the same right to vote as any other citizen. (9)In the same 2006 election, some Virginia voters received automated phone messages falsely warning them that the Virginia Elections Commission had determined they were ineligible to vote and that they would face severe criminal penalties if they tried to cast a ballot. (10)In 2006 in Maryland, certain campaigns for Governor and United States Senator distributed fliers in predominantly African-American neighborhoods falsely claiming that certain candidates had been endorsed by their opponents' party and by prominent figures who had actually endorsed the opponents of the candidates. (11)Those responsible for these and similar efforts should be held accountable, and civil and criminal penalties should be available to punish anyone who seeks to keep voters away from the polls by providing false information. (12)Moreover, the Federal Government should help correct such false information in order to assist voters in exercising their right to vote without confusion and to preserve the integrity of the electoral process. (13)The Federal Government has a compelling interest in protecting voters from confusion and undue influence and in preserving the integrity of its election process. Burson v. Freeman, 504 U.S. 191, 199 (1992). (14)The First Amendment does not preclude the regulation of some intentionally false speech, even if it is political in nature. As the Supreme Court of the United States has recognized, “[t]hat speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected … . Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.”. Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

Prohibition on deceptive practices in Federal elections

(a)

Civil action

Subsection (b) of section 2004 of the Revised Statutes (42 U.S.C. 1971(b)) is amended— (1)by striking No person and inserting the following:

(1)No person

; and

(2)by inserting at the end the following new paragraph:

(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).

(b)

Criminal penalty

(1)

In general

Section 594 of title 18, United States Code, is amended— (A)by striking Whoever and inserting the following:

(a)

Intimidation

Whoever

;

(B)by striking at any election held solely or in part for the purpose of electing such a candidate and inserting at any general, primary, run-off, or special election held solely or in part for the purpose of electing such a candidate; and (C)by adding at the end the following:

(b)

Deceptive acts

(1)

Prohibition

(A)

In general

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

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

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.

(2)

Modification of penalty for voter intimidation

Sentencing guidelines

(A)

Review and Amendment

Authorization

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act.

Reporting of false election information

(a)

In general

Referral

If a report under subsection (a) provides a reasonable basis to find that a violation of section 2004(b) of the Revised Statutes (42 U.S.C. 1971(b)) or section 594(b) of title 18, United States Code, has occurred, the Attorney General shall pursue any appropriate criminal prosecution or civil action and shall refer the matter to the Civil Rights Division of the Department of Justice for criminal prosecution or civil action, but only if such matter is otherwise under the jurisdiction of such division. (c)

Delay of investigation

No investigation or legal action relating to a report under subsection (a) may begin until after the election with respect to which such report relates has been completed, unless the Attorney General— (1)reasonably believes that it is necessary to promptly pursue such investigation or legal proceedings; and (2)reasonably determines that such investigation or legal proceeding will not inhibit any person from exercising the right to vote.

Corrective action

(a)

Action by Attorney General

(1)

In general

Immediately after receiving a report under section 4(a), the Attorney General shall consider and review such report. If the report provides a reasonable basis to find that— (A)false information relating to— (i)the time or place of any general, primary, run-off, or special election held solely or in part for the purpose of electing a candidate for Federal office; or (ii)the qualifications for or restrictions on voter eligibility for any such election;

has been communicated, caused to be communicated, or produced with the intent that such information be communicated; and

(B)the communication of such false information could materially hinder any citizen's right to vote;

the Attorney General shall undertake all effective measures necessary to correct such false information by providing correct information relating to the time or place of the election or the qualifications for or restrictions on voter eligibility to voters affected by the false information. The information provided by the Attorney General to affected voters under the preceding sentence shall only consist of information necessary to correct the false information described in the report.

(2)

Investigation

In reviewing a report under paragraph (1), the Attorney General shall not undertake any investigation relating to the report unless— (A)such an investigation is necessary to determine the need for, or the scope of, corrective action under paragraph (1); and (B)the Attorney General reasonably determines that such investigation will not inhibit any person from exercising the right to vote. (b)

Right of action

If a person has made a report under section 4(a) that provides a reasonable basis for finding that information described in subsection (a)(1)(A) has been communicated, caused to be communicated, or produced with the intent that such information be communicated, and the Attorney General fails to take corrective action required under subsection (a) within 72 hours of the filing of such report (or sooner if necessary to permit timely corrective action before an election), such person may apply to a United States district court for an order requiring the Attorney General to take such corrective action. (c)

Standards for taking corrective action

(1)

In general

(A)

Biannual report

Not later than January 1 of each year in which there is a regularly scheduled general election for Federal office, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the procedures and standards intended to be used to provide corrective action under this subsection. (B)

Supplemental reports

If the Attorney General revises or changes any procedures or standards contained in the most recent report submitted under subparagraph (A), the Attorney General shall promptly submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on such revised or additional procedures. (C)

Consultation

In developing or revising any standards or procedures for the methods and means of corrective actions under this subsection, the Attorney General shall consult with the Election Assistance Commission, civil rights organizations, voting rights groups, State and local election officials, voter protection groups, and other interested community organizations. (2)

Study

(A)

In general

The Attorney General, in consultation with the Federal Communications Commission and the Election Assistance Commission, shall conduct a study on the feasibility of providing corrective information under subsection (a) through public service announcements, the emergency alert system, or other forms of public broadcast. (B)

Report

Not later than 90 days after the date of the enactment of this Act, the Attorney General shall submit to Congress a report detailing the results of the study conducted under subparagraph (A). (d)

Federal office

For purposes of this section and section 6, the term Federal office means 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 of the United States. (e)

Authorization of appropriations

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

Reports to Congress

(a)

In general

Not later than 90 days after any general election for Federal office, the Attorney General shall submit to the appropriate committees of Congress a report compiling and detailing any allegations of false information submitted pursuant to section 4(a) which relate to such election or to any primary or run-off election held before such election and after the general election for Federal office preceding the general election to which the report relates. (b)

Contents

(1)

In general

Each report submitted under subsection (a) shall include— (A)detailed information on specific allegations of deceptive tactics; (B)statistical compilations of how many allegations were made and of what type; (C)the geographic locations of and the populations affected by the alleged deceptive information; (D)the status of the investigations of such allegations; (E)any corrective actions taken under section 5(a) in response to such allegations; (F)the rationale used for any such corrective actions or for any refusal to pursue an allegation relating to information described in section 5(a)(1)(A); (G)the effectiveness of any such corrective actions; (H)any legal actions filed against the Attorney General under section 5(b), together with the outcome of each such legal action; (I)any referrals of information to other Federal, State, or local agencies; (J)any suit instituted under section 2004(b)(2) of the Revised Statutes (42 U.S.C. 1971(b)(2)) in connection with such allegations; and (K)any criminal prosecution instituted under title 18, United States Code, in connection with such allegations. (2)

Exception

The Attorney General may withhold any nonpublic 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. (c)

Report made public

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

Severability

October 4, 2007

Reported with an amendment