[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3279 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 3279

         To prohibit deceptive practices in Federal elections.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 26, 2018

  Mrs. McCaskill (for herself, Mr. Cardin, Mr. Jones, 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 2018''.

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 ownership 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 or misleading 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) Furthermore, since the decision in Shelby County v. 
        Holder in which the Supreme Court struck down the coverage 
        formula used by the Voting Rights Act of 1965 to determine 
        which States with a history of racial discrimination must 
        affirmatively receive government permission before changing 
        local voting laws, there have been Federal court decisions 
        finding or affirming that States or localities intentionally 
        discriminated against African Americans and other voters of 
        color.
            (6) 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.
            (7) For the last few decades, there have been a number of 
        instances of deceptive or intimidating practices aimed towards 
        suppressing minority access to the voting booth that 
        demonstrates the need for strengthened protections.
            (8) In addition, in at least one instance in 1990, 
        thousands of voters reportedly received postcards providing 
        false information about voter eligibility and warnings about 
        criminal penalties for voter fraud. Most of the voters who 
        received the postcards were African-American.
            (9) During the 2004 elections, Native American voters in 
        South Dakota reported being required to provide photographic 
        identification in order to vote, despite the fact that neither 
        State nor Federal law required such identification.
            (10) In the 2006 midterm elections, thousands of Latino 
        voters received mailings warning them in Spanish that voting in 
        a Federal election as an immigrant could result in 
        incarceration--despite the fact that any immigrant who is a 
        naturalized citizen of the United States has the same right to 
        vote as any other citizen.
            (11) In 2008, fliers were distributed in predominantly 
        African-American neighborhoods 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, there were reports of people receiving text messages 
        on Election Day asking them to wait until the following day to 
        vote.
            (12) In 2012, there were reports of voters receiving calls 
        falsely informing them that they could vote via telephone.
            (13) In the 2016 elections, there were reports of students 
        receiving fliers stating that in order to vote in a local 
        precinct, they had to pay to change their driver's license and 
        re-register vehicles in the city in which the precinct was 
        located.
            (14) 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.
            (15) 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.
            (16) 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).
            (17) 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) Prohibition.--Subsection (b) of section 2004 of the Revised 
Statutes (52 U.S.C. 10101(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 60 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 impede 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, place, or manner 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 60 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 impede or prevent 
                        another person from exercising the right to 
                        vote in an election described in paragraph (5).
                    ``(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; and
                            ``(ii) such person, political party, or 
                        organization has not endorsed the election of 
                        such candidate.
            ``(4) Hindering, interfering with, or preventing voting or 
        registering to vote.--No person, whether acting under color of 
        law or otherwise, shall intentionally 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 Senate, Member 
        of the House of Representatives, or Delegate or Commissioner 
        from a Territory or possession.''.
    (b) Private Right of Action.--
            (1) In general.--Subsection (c) of section 2004 of the 
        Revised Statutes (52 U.S.C. 10101(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. In any such action, the 
        court, in its discretion, may allow the prevailing party a 
        reasonable attorney's fee as part of the costs.''.
            (2) Conforming amendments.--
                    (A) Subsection (e) of section 2004 of the Revised 
                Statutes (52 U.S.C. 10101(e)) is amended by striking 
                ``subsection (c)'' and inserting ``subsection (c)(1)''.
                    (B) Subsection (g) of section 2004 of the Revised 
                Statutes (52 U.S.C. 10101(g)) is amended by striking 
                ``subsection (c)'' and inserting ``subsection (c)(1)''.
    (c) Criminal Penalties.--
            (1) Deceptive acts.--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 60 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 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 not more than $100,000, 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 not more than $100,000, 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 Senate, Member of the House of Representatives, or Delegate or 
Commissioner from a Territory or possession.''.
            (2) Modification of penalty for voter intimidation.--
        Section 594(a) of title 18, United States Code, as amended by 
        paragraph (1), is amended by striking ``fined under this title 
        or imprisoned not more than one year'' and inserting ``fined 
        not more than $100,000, imprisoned for not more than 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 (52 U.S.C. 10307) 
        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 (52 U.S.C. 10101(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 (52 U.S.C. 10101(b)), as 
added by section 3(a), relating to the general election for Federal 
office and any primary, run-off, or a special 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) to the extent information is available, a 
                description of any civil action instituted under 
                section 2004(c)(2) of the Revised Statutes (52 U.S.C. 
                10101(c)(2)), as added by section 3(b), 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 that 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.
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