1.This Act may be cited as
the Deceptive Practices and Voter
Intimidation Prevention Act of 2011
.
2.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).
3.Prohibition on
deceptive practices in Federal elections
(a)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 paragraphs:
(2)False
statements regarding Federal elections
(A)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 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)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 voteNo
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)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)
(1)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)
(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)
(1)Section 594 of title 18, United States Code, is
amended—
(A)by striking
Whoever
and inserting the following:
(a)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)
(1)False
statements regarding Federal elections
(A)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 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)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)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)Any
person who violates paragraph (1) shall be fined under this title, imprisoned
for not more than 5 years, or both.
(d)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)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 intimidationSection 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)
(A)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)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 votingSubsection (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
.
4.
(a)
(1)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 informationAny 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)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 deadlinesThe procedures and standards under
paragraph (1) shall include appropriate deadlines, based in part on the number
of days remaining before the upcoming election.
(3)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 appropriationsThere are authorized to be appropriated to the
Attorney General such sums as may be necessary to carry out this Act.
5.
(a)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)
(1)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)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 informationThe 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)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.
6.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.