[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1994 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1994

         To prohibit deceptive practices in Federal elections.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 14, 2011

  Mr. Schumer (for himself, Mr. Cardin, and Mr. Leahy) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
         To prohibit deceptive practices in Federal elections.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Deceptive Practices and Voter 
Intimidation Prevention Act of 2011''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The right to vote by casting a ballot for one's 
        preferred candidate is a fundamental right accorded to United 
        States citizens by the Constitution, and the unimpeded exercise 
        of this right is essential to the functioning of our democracy.
            (2) Historically, certain citizens, especially racial, 
        ethnic, and language minorities, were prevented from voting 
        because of significant barriers such as literacy tests, poll 
        taxes, and property requirements.
            (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, ethnic, and language 
        minorities from exercising that right, are an outgrowth of 
        discriminatory history, including slavery. Measures to combat 
        denials of that right are a legitimate exercise of 
        congressional power under article I, section 4 and article II, 
        section 1 of, and the 14th and 15th Amendments to, the United 
        States Constitution.
            (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 2004, fliers were distributed in minority 
        neighborhoods in Milwaukee, Wisconsin, falsely claiming, ``If 
        you've already voted in any election this year, you can't vote 
        in the presidential election; If anybody in your family has 
        ever been found guilty of anything, you can't vote in the 
        presidential election; If you violate any of these laws, you 
        can get ten years in prison and your children will get taken 
        away from you.''.
            (9) In 2004, in Franklin County, Ohio, a flyer was 
        distributed urging voters of one political party to vote on 
        Tuesday, Election Day, and voters of another political party to 
        vote on Wednesday, the day after the election.
            (10) In the 2004 general election, in Allegheny County, 
        Pennsylvania, a flyer was distributed noting that due to 
        ``immense voter turnout'' Republicans should vote on Tuesday 
        and Democrats should vote on Wednesday. The flyer thanked 
        voters ``for cooperating with us in this endeavor to create a 
        peaceful voting environment''.
            (11) In the 2006 midterm election, 14,000 Latino voters in 
        Orange County, California received mailings from the California 
        Coalition for Immigration Reform, warning them in Spanish that 
        ``if you are an immigrant, voting in a federal election is a 
        crime that can result in incarceration . . .''. In fact, an 
        immigrant who is a naturalized citizen of the United States has 
        the same right to vote as any other citizen.
            (12) In the same 2006 election, some Virginia voters 
        received automated phone messages falsely warning them that the 
        ``Virginia Elections Commission'' had determined they were 
        ineligible to vote and that they would face severe criminal 
        penalties if they tried to cast a ballot.
            (13) In 2006, in Maryland, certain campaigns for Governor 
        and United States Senator distributed fliers in predominantly 
        African-American neighborhoods falsely claiming that certain 
        candidates had been endorsed by their opponents' party and by 
        prominent figures who had actually endorsed the opponents of 
        the candidates.
            (14) In 2008, Ohio residents reported receiving misleading 
        automated calls giving voters incorrect information about the 
        location of their polling places.
            (15) In the same year, fliers were distributed in 
        predominantly African-American neighborhoods of Philadelphia, 
        Pennsylvania, falsely warning that people with outstanding 
        warrants or unpaid parking tickets could be arrested if they 
        showed up at the polls on Election Day.
            (16) In the same year, messages were sent to users of the 
        social media website Facebook falsely stating that the election 
        had been postponed a day. Students at some universities, 
        including Florida State University, received text messages 
        saying the same thing.
            (17) In the same year, a local registrar of elections in 
        Montgomery County, Virginia, issued two releases incorrectly 
        warning that students at Virginia Tech who registered to vote 
        at their college could no longer be claimed as dependents on 
        their parents' tax returns and could lose scholarships or 
        coverage under their parents' car and health insurance.
            (18) In the 2010 election, in African-American 
        neighborhoods of Houston, Texas, a group called the ``Black 
        Democratic Trust of Texas'' distributed flyers falsely warning 
        that a straight-ticket vote for the Democratic Party would not 
        count and that a vote just for a single Democratic candidate 
        would count for the entire Democratic ticket.
            (19) In the 2010 election, in Maryland, a political 
        consultant paid for robocalls on election night to thousands of 
        African-American households that said, while the polls were 
        still open, ``I'm calling to let everyone know that Governor 
        O'Malley and President Obama have been successful. Our goals 
        have been met. The polls were correct . . . We're okay. Relax. 
        Everything is fine. The only thing left is to watch on TV 
        tonight.''.
            (20) Those responsible for these and similar efforts should 
        be held accountable, and civil and criminal penalties should be 
        available to punish anyone who seeks to keep voters away from 
        the polls by providing false information.
            (21) Moreover, the Federal Government should help correct 
        such false information in order to assist voters in exercising 
        their right to vote without confusion and to preserve the 
        integrity of the electoral process.
            (22) The Federal Government has a compelling interest in 
        ``protecting voters from confusion and undue influence'' and in 
        ``preserving the integrity of its election process''. Burson v. 
        Freeman, 504 U.S. 191, 199 (1992).
            (23) The First Amendment does not preclude the regulation 
        of some intentionally false speech, even if it is political in 
        nature. As the Supreme Court of the United States has 
        recognized, ``[t]hat speech is used as a tool for political 
        ends does not automatically bring it under the protective 
        mantle of the Constitution. For the use of the known lie as a 
        tool is at once at odds with the premises of democratic 
        government and with the orderly manner in which economic, 
        social, or political change is to be effected . . . . Hence the 
        knowingly false statement and the false statement made with 
        reckless disregard of the truth, do not enjoy constitutional 
        protection.''. Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

SEC. 3. PROHIBITION ON DECEPTIVE PRACTICES IN FEDERAL ELECTIONS.

    (a) Civil Action.--Subsection (b) of section 2004 of the Revised 
Statutes (42 U.S.C. 1971(b)) is amended--
            (1) by striking ``No person'' and inserting the following:
            ``(1) In general.--No person''; and
            (2) by inserting at the end the following new paragraphs:
            ``(2) False statements regarding federal elections.--
                    ``(A) Prohibition.--No person, whether acting under 
                color of law or otherwise, shall, within 90 days before 
                an election described in paragraph (5), by any means, 
                including by means of written, electronic, or 
                telephonic communications, communicate or cause to be 
                communicated information described in subparagraph (B), 
                or produce information described in subparagraph (B) 
                with the intent that such information be communicated, 
                if such person--
                            ``(i) knows such information to be 
                        materially false; and
                            ``(ii) has the intent to mislead voters, or 
                        the intent to impede, hinder, discourage, or 
                        prevent another person from exercising the 
                        right to vote in an election described in 
                        paragraph (5).
                    ``(B) Information described.--Information is 
                described in this subparagraph if such information is 
                regarding--
                            ``(i) the time or place of holding any 
                        election described in paragraph (5); or
                            ``(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.
            ``(3) False statements regarding public endorsements.--
                    ``(A) Prohibition.--No person, whether acting under 
                color of law or otherwise, shall, within 90 days before 
                an election described in paragraph (5), by any means, 
                including by means of written, electronic, or 
                telephonic communications, communicate, or cause to be 
                communicated, a materially false statement about an 
                endorsement, if such person--
                            ``(i) knows such statement to be false; and
                            ``(ii) has the intent to mislead voters.
                    ``(B) Definition of `materially false'.--For 
                purposes of subparagraph (A), a statement about an 
                endorsement is `materially false' if, with respect to 
                an upcoming election described in paragraph (5)--
                            ``(i) the statement states that a 
                        specifically named person, political party, or 
                        organization has endorsed the election of a 
                        specific candidate for a Federal office 
                        described in such paragraph;
                            ``(ii) such person, political party, or 
                        organization has not endorsed the election of 
                        such candidate; and
                            ``(iii) such person, political party, or 
                        organization--
                                    ``(I) has publicly and explicitly 
                                stated that it supports the election of 
                                a different candidate for such Federal 
                                office in the election; or
                                    ``(II) has supported no candidate 
                                for such Federal office in the 
                                election.
            ``(4) Hindering, interfering with, or preventing voting or 
        registering to vote.--No person, whether acting under color of 
        law or otherwise, shall corruptly hinder, interfere with, or 
        prevent another person from voting, registering to vote, or 
        aiding another person to vote or register to vote in an 
        election described in paragraph (5).
            ``(5) Election described.--An election described in this 
        paragraph is any general, primary, run-off, or special election 
        held solely or in part for the purpose of nominating or 
        electing a candidate for the office of President, Vice 
        President, presidential elector, Member of the United States 
        Senate, Member of the United States House of Representatives, 
        or Delegate or Commissioner from a district, territory, or 
        possession.''.
    (b) Private Right of Action.--
            (1) In general.--Subsection (c) of section 2004 of the 
        Revised Statutes (42 U.S.C. 1971(c)) is amended--
                    (A) by striking ``Whenever any person'' and 
                inserting the following:
            ``(1) Whenever any person''; and
                    (B) by adding at the end the following new 
                paragraph:
            ``(2) Any person aggrieved by a violation of subsection 
        (b)(2), (b)(3), or (b)(4) may institute a civil action for 
        preventive relief, including an application in a United States 
        district court for a permanent or temporary injunction, 
        restraining order, or other order.''.
            (2) Conforming amendments.--
                    (A) Subsection (e) of section 2004 of the Revised 
                Statutes (42 U.S.C. 1971(e)) is amended by striking 
                ``subsection (c)'' and inserting ``subsection (c)(1)''.
                    (B) Subsection (g) of section 2004 of the Revised 
                Statutes (42 U.S.C. 1971(g)) is amended by striking 
                ``subsection (c)'' and inserting ``subsection (c)(1)''.
    (c) 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) in subsection (a), as inserted by subparagraph 
                (A), by striking ``at any election'' and inserting ``at 
                any general, primary, run-off, or special election''; 
                and
                    (C) by adding at the end the following new 
                subsections:
    ``(b) Deceptive Acts.--
            ``(1) False statements regarding federal elections.--
                    ``(A) Prohibition.--It shall be unlawful for any 
                person, whether acting under color of law or otherwise, 
                within 90 days before an election described in 
                subsection (e), by any means, including by means of 
                written, electronic, or telephonic communications, to 
                communicate or cause to be communicated information 
                described in subparagraph (B), or produce information 
                described in subparagraph (B) with the intent that such 
                information be communicated, if such person--
                            ``(i) knows such information to be 
                        materially false; and
                            ``(ii) has the intent to mislead voters, or 
                        the intent to impede, hinder, discourage, or 
                        prevent another person from exercising the 
                        right to vote in an election described in 
                        subsection (e).
                    ``(B) Information described.--Information is 
                described in this subparagraph if such information is 
                regarding--
                            ``(i) the time or place of holding any 
                        election described in subsection (e); or
                            ``(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.
            ``(2) Penalty.--Any person who violates paragraph (1) shall 
        be fined under this title, imprisoned for not more than 5 
        years, or both.
    ``(c) Hindering, Interfering With, or Preventing Voting or 
Registering To Vote.--
            ``(1) Prohibition.--It shall be unlawful for any person, 
        whether acting under color of law or otherwise, to corruptly 
        hinder, interfere with, or prevent another person from voting, 
        registering to vote, or aiding another person to vote or 
        register to vote in an election described in subsection (e).
            ``(2) Penalty.--Any person who violates paragraph (1) shall 
        be fined under this title, imprisoned for not more than 5 
        years, or both.
    ``(d) Attempt.--Any person who attempts to commit any offense 
described in subsection (a), (b)(1), or (c)(1) shall be subject to the 
same penalties as those prescribed for the offense that the person 
attempted to commit.
    ``(e) Election Described.--An election described in this subsection 
is any general, primary, run-off, or special election held solely or in 
part for the purpose of nominating or electing a candidate for the 
office of President, Vice President, presidential elector, Member of 
the United States Senate, Member of the United States House of 
Representatives, or Delegate or Commissioner from a district, 
territory, or possession.''.
            (2) Modification of penalty for voter intimidation.--
        Section 594(a) of title 18, United States Code, as inserted and 
        amended by paragraph (1), is amended by striking ``one year'' 
        and inserting ``5 years''.
            (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, as amended by this section.
                    (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.
            (4) Payments for refraining from voting.--Subsection (c) of 
        section 11 of the Voting Rights Act of 1965 (42 U.S.C. 1973i) 
        is amended by striking ``either for registration to vote or for 
        voting'' and inserting ``for registration to vote, for voting, 
        or for not voting''.

SEC. 4. CORRECTIVE ACTION.

    (a) Corrective Action.--
            (1) In general.--If the Attorney General receives a 
        credible report that materially false information has been or 
        is being communicated in violation of paragraphs (2) and (3) of 
        section 2004(b) of the Revised Statutes (42 U.S.C. 1971(b)), as 
        added by section 3(a), and if the Attorney General determines 
        that State and local election officials have not taken adequate 
        steps to promptly communicate accurate information to correct 
        the materially false information, the Attorney General shall, 
        pursuant to the written procedures and standards under 
        subsection (b), communicate to the public, by any means, 
        including by means of written, electronic, or telephonic 
        communications, accurate information designed to correct the 
        materially false information.
            (2) Communication of corrective information.--Any 
        information communicated by the Attorney General under 
        paragraph (1)--
                    (A) shall--
                            (i) be accurate and objective;
                            (ii) consist of only the information 
                        necessary to correct the materially false 
                        information that has been or is being 
                        communicated; and
                            (iii) to the extent practicable, be by a 
                        means that the Attorney General determines will 
                        reach the persons to whom the materially false 
                        information has been or is being communicated; 
                        and
                    (B) shall not be designed to favor or disfavor any 
                particular candidate, organization, or political party.
    (b) Written Procedures and Standards for Taking Corrective 
Action.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Attorney General shall publish 
        written procedures and standards for determining when and how 
        corrective action will be taken under this section.
            (2) Inclusion of appropriate deadlines.--The procedures and 
        standards under paragraph (1) shall include appropriate 
        deadlines, based in part on the number of days remaining before 
        the upcoming election.
            (3) Consultation.--In developing the procedures and 
        standards under paragraph (1), the Attorney General shall 
        consult with the Election Assistance Commission, State and 
        local election officials, civil rights organizations, voting 
        rights groups, voter protection groups, and other interested 
        community organizations.
    (c) Authorization of Appropriations.--There are authorized to be 
appropriated to the Attorney General such sums as may be necessary to 
carry out this Act.

SEC. 5. REPORTS TO CONGRESS.

    (a) In General.--Not later than 180 days after each general 
election for Federal office, the Attorney General shall submit to 
Congress a report compiling all allegations received by the Attorney 
General of deceptive practices described in paragraphs (2), (3), and 
(4) of section 2004(b) of the Revised Statutes (42 U.S.C. 1971(b)), as 
added by section 3(a), relating to the general election for Federal 
office and any primary, run-off, or special election relating to the 
general election for Federal office held in the 2 years preceding the 
general election.
    (b) Contents.--
            (1) In general.--Each report submitted under subsection (a) 
        shall include--
                    (A) a description of each allegation of a deceptive 
                practice described in subsection (a), including the 
                geographic location, racial and ethnic composition, and 
                language minority-group membership of the persons 
                toward whom the alleged deceptive practice was 
                directed;
                    (B) the status of the investigation of each 
                allegation described in subparagraph (A);
                    (C) a description of each corrective action taken 
                by the Attorney General under section 4(a) in response 
                to an allegation described in subparagraph (A);
                    (D) a description of each referral of an allegation 
                described in subparagraph (A) to other Federal, State, 
                or local agencies;
                    (E) a description of any civil action instituted 
                under paragraph (2), (3), or (4) of section 2004(b) of 
                the Revised Statutes (42 U.S.C. 1971(b)), as added by 
                section 3(a), in connection with an allegation 
                described in subparagraph (A); and
                    (F) a description of any criminal prosecution 
                instituted under section 594 of title 18, United States 
                Code, as amended by section 3(c), in connection with 
                the receipt of an allegation described in subparagraph 
                (A) by the Attorney General.
            (2) Exclusion of certain information.--
                    (A) In general.--The Attorney General shall not 
                include in a report submitted under subsection (a) any 
                information protected from disclosure by rule 6(e) of 
                the Federal Rules of Criminal Procedure or any Federal 
                criminal statute.
                    (B) Exclusion of certain other information.--The 
                Attorney General may determine that the following 
                information shall not be included in a report submitted 
                under subsection (a):
                            (i) Any information which is privileged.
                            (ii) Any information concerning an ongoing 
                        investigation.
                            (iii) Any information concerning a criminal 
                        or civil proceeding conducted under seal.
                            (iv) Any other nonpublic information that 
                        the Attorney General determines the disclosure 
                        of which could reasonably be expected to 
                        infringe on the rights of any individual or 
                        adversely affect the integrity of a pending or 
                        future criminal investigation.
    (c) Report Made Public.--On the date that the Attorney General 
submits the report under subsection (a), the Attorney General shall 
also make the report publicly available through the Internet and other 
appropriate means.

SEC. 6. SEVERABILITY.

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