    [Senate Hearing 110-277]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 110-277

      PREVENTION OF DECEPTIVE PRACTICES AND VOTER INTIMIDATION IN FEDERAL
                               ELECTIONS: S. 453

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                           ONE HUNDRED TENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  JUNE 7, 2007

                                   __________

                              Serial No. J-110-42

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
    JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
    HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
    DIANNE FEINSTEIN, California         JON KYL, Arizona
    RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
    CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
    RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
    BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
    SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
                Bruce A. Cohen, Chief Counsel and Staff Director
          Michael O'Neill, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Cardin, Hon. Benjamin L., a U.S. Senator from the State of
      Maryland.......................................................     1
        prepared statement...........................................   123
    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................     4
    Leahy, Hon. Patrick J., a U.S. Senator fromtor from the State of
      Vermont, prepared statement....................................   161
    Schumer, Hon. Charles E., a U.S. Senator from the State of New
      York...........................................................     5
        prepared statement...........................................   242

                                   WITNESSES

    Briffault, Richard, Joseph P. Chamberlain Professor of
      Legislation, Columbia Law School, New York, New York...........    21
    Canfield, William B., Principal, Williams & Jensen PLLC,
      Washington, D.C................................................    22
    Gansler, Hon. Douglas F., Attorney General, State of Maryland,
      Baltimore, Maryland............................................    10
    Johnson, Hon. Jack B., County Executive, Prince George's County,
      Maryland, Upper Marlboro, Maryland.............................    12
    Kirsanow, Peter N., Commissioner, United States Commission on
      Civil Rights, Washington, D.C..................................    23
    Obama, Hon. Barack, a U.S Senator from the State of Illinois.....     7
    Shelton, Hilary O., Director, Washington Bureau, National
      Association for the Advancement of Colored People (NAACP),
      Washington, D.C................................................    17
    Trasvina, John, President and General Counsel, Mexican American
      Legal Defense and Educational Fund (MALDEF), Los Angeles,
      California.....................................................    19

                           SUBMISSIONS FOR THE RECORD

    American Center for Voting Rights, Washington, D.C., report......    37
    Arkansas Democrat-Gazette, January 22, 2001, article.............   111
    Associated Press:
        June 29, 1999, article.......................................   113
        June 10, 2007, article.......................................   114
        June 9, 2007, article........................................   115
    Briffault, Richard, Joseph P. Chamberlain Professor of
      Legislation, Columbia Law School, New York, New York, statement   116
    Canfield, William B., Principal, Williams & Jensen PLLC,
      Washington, D.C., statement....................................   120
    Fox News, October 16, 2002, article..............................   127
    Gale Group Inc., October 30, 2006, article.......................   129
    Gansler, Hon. Douglas F., Attorney General, State of Maryland,
      Baltimore, Maryland, statement, statement......................   133
    Houston Post, November 3, 1964, reproduction of ``public notice''   137
    Johnson, Hon. Jack B., County Executive, Prince George's County,
      Maryland, Upper Marlboro, Maryland, statement..................   138
    Joint Task Force Investigating Election Fraud, May 10, 2005......   142
    Kirsanow, Peter N., Commissioner, United States Commission on
      Civil Rights, Washington, D.C., statement and attachments......   149
    Lawyers Committee for Civil Rights Under Law, Barbara Arnwine,
      Executive Director, Washington, D.C., statement................   156
    Lott, John R., Jr., Department of Economics, SUNY Binghamton,
      Binghamton, New York, statement................................   163
    Manhattan Institute, City Journal, Fall 2004, articles...........   190
    Mathias, Charles McC., Jr., former U.S. Senator, Washington,
      D.C., letter...................................................   195
    Miami Herald:
      December 2, 2000, article......................................   200
      January 19, 2001, article......................................   202
      January 22, 2001, article......................................   204
    Milwaukee Journal Sentinel, article..............................   208
    MSNBC.com, article...............................................   213
    National Public Radio, July 25, 2002, interview..................   214
    National Review, June 11, 2007, article..........................   218
    New York Times, November 2, 1990, article........................   220
    Organizations requesting the Federal Bureau of Investigation to
      investigate potential violations of the Voting Rights Act,
      joint letter and attachments...................................   222
    People for the American Way, Washington, D.C., statement.........   231
    Roberts, Patricia M., President, Citizens Against Un-American
      Voter Intimidation, Washington, D.C., statement................   237
    Shelton, Hilary O., Director, Washington Bureau, National
      Association for the Advancement of Colored People (NAACP),
      Washington, D.C., statement....................................   244
    Toledo Blade, October 19, 2004, article..........................   247
    Trasvina, John, President and General Counsel, Mexican American
      Legal Defense and Educational Fund (MALDEF), Los Angeles,
      California, statement..........................................   250
    U.S. District Court, District of South Dakota, Southern Division,
      complaint, memorandum in support of complaint, and temporary
      restraining order..............................................   254
    Wall Street Journal, June 13, 2007, article......................   270
    Washington Post, October 25, 1986, article.......................   272

      PREVENTION OF DECEPTIVE PRACTICES AND VOTER INTIMIDATION IN FEDERAL
                               ELECTIONS: S. 453

                                  ----------

                             THURSDAY, JUNE 7, 2007

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                       Washington, D.C.
        The Committee met, Pursuant to notice, at 2:05 p.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
    Cardin, presiding.
        Present: Senators Cardin, Feingold, and Hatch.

     OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
                       FROM THE STATE OF MARYLAND

        Senator Cardin. The Judiciary Committee will come to order.
        First, I want to thank Chairman Leahy for holding these
    hearings today in regards to the ``Prevention of Deceptive
    Practices and Voter Intimidation in Federal Elections, S. 453''
    and thank him for his leadership on this issue and allowing me
    to chair the hearing today.
        After having served in elective office in Annapolis for 20
    years and in Washington for 20 years, I understand that
    campaigns are a rough and tumble business. I expect that
    candidates will question and criticize my record and judgment,
    and voters ultimately have the right to choose their candidate.
        What goes beyond the pale is when campaigns use deceptive
    tactics to deliberately marginalize and disenfranchise minority
    voters. Sadly, this tactic was seen in the 2006 elections.
    These tactics seem to be deliberately targeted to minority
    neighborhoods and are blatant attempts to reduce minority
    turnout.
        In previous elections we have seen deceptive literature
    distributed which gave the wrong date for the election, the
    wrong times when polling places were open, and even suggested
    that people could be arrested if they had unpaid parking
    tickets or unpaid taxes and tried to vote. Other literature
    purported to give a different general election day for
    Republicans and Democrats.
        So I want to start the hearing today by going through a few
    examples of actual literature that was distributed in recent
    elections. These fliers will be made part of our record of our
    Committee, without objection. And, in particular, I want to
    thank the Lawyers Committee for Civil Rights Under Law and its
    Executive Director Barbara Arnwine and Jonah Goldman, the
    Director of the National Campaign for Fair Elections for
    categorizing and documenting these practices.
        Let me first show you Exhibit 1, which is from Jefferson
    County, Alabama, which gives the wrong day for the election.
        Exhibit 2 is one that I am very familiar with, which was
    used in the Maryland elections and purports to have the
    endorsement of prominent African-Americans. The person who was
    running on the Republican ticket, when two of these prominent
    African-Americans, was, in fact, the Democratic candidate.
    These types of deceptive literature are despicable and
    outrageous. It is clearly designed to mislead African-American
    voters. Maryland voters have a legal right to vote and pick the
    candidate of their choice. I was also upset to learn from the
    Washington Post that the Republican Party had instructed their
    poll watchers to challenge voters in an effort, I believe, to
    suppress minority vote.
        Exhibit 3 is from Franklin County, Ohio, in the 2004
    election campaign. It said that due to ``confusion caused by
    unexpected heavy voter registrations'' that Republicans should
    vote on Tuesday and Democrats should vote on Wednesday.
        Exhibit 4 is from Allegheny County, Pennsylvania, in the
    2004 general election. It stated that ``due to immense voter
    turnout'' that Republicans should vote on--I am sorry. I think
    I mixed up the two. This is the one that has on Tuesdays and
    Republicans should vote--Democrats should vote on Wednesday.
        Let me go to Exhibit 5, which is from Orange County,
    California, in the 2006 general election. The distinguished
    President and General Counsel of the Mexican American Legal
    Defense and Education Fund John Trasvina, who will be
    testifying later--the original version is in Spanish and we
    have a translation in English. The letter was sent to
    individuals who had recently registered to vote. Paragraph 2
    warns the individual, in part, that if they are immigrants that
    ``voting in a Federal election is a crime that can result in
    incarceration and possible deportation for voting without the
    right to do so.''
        Exhibit 6, I return to Maryland and Baltimore City, in the
    2002 elections. It gives the wrong date--November 6th--for the
    election. It was distributed in minority communities, and it
    warns voters to pay parking tickets, motor vehicle tickets,
    overdue rent ``before you come to vote.'' It also warns them
    about ``any warrants.''
        And, last, Exhibit 7 is from Milwaukee, Wisconsin, in the
    2004 general elections. The flier contains ``some warnings for
    election time'' and states that you can only vote once a year;
    and if you are found guilty of anything, even a traffic ticket,
    that you cannot vote in the Presidential election; and that it
    you ``violate any of these laws you can get 10 years in prison
    and your children can be taken away from you.''
        Now, what is in common with all seven of these exhibits is
    that they were targeted to minority communities in an effort to
    suppress minority vote. It has been 137 years since Congress
    and the States ratified the 15th Amendment to the Constitution
    in 1870, which states that ``the right of citizens of the
    United States to vote shall not be denied or abridged by the
    United States or by any State on account of race [or] color.''
    The amendment also gave Congress power to enforce articles by
    ``appropriate legislation.'' African-Americans suffered through
    nearly another 100 years of discrimination at the hands of Jim
    Crow laws and regulations, designed to make it difficult if not
    impossible for African-American to register to vote due to
    literacy tests, poll taxes, and outright harassment and
    violence. It took Congress and the States nearly another
    century until we adopted the 24th Amendment to the Constitution
    in 1964, which prohibited poll taxes or any tax on the right to
    vote. In 1965 Congress finally enacted the Voting Rights Act,
    which once and for all was supposed to end discriminatory
    actions against voters based upon race.
        It is time for Congress to once again take action to stop
    the latest reprehensible tactics that are being used against
    African-American, Latino, and other minority voters to
    interfere with their right to vote. I particularly want to
    thank my colleagues Senator Obama and Senator Schumer, and I am
    pleased to join them with S. 453, a bill that would allow the
    Federal Government to say clearly that these are illegal
    tactics and to use our influence to make sure that they are not
    part of any elections.
        In the House I understand that similar legislation, H.R.
    1281, has been approved by the House Judiciary Committee and is
    awaiting action in the full House.
        I also want to thank one of my predecessors in the Senate,
    the Honorable Mac Mathias, a Republican from the State of
    Maryland, for his thoughtful letter of June 4, 2007. Senator
    Mathias is with us today, and I thank you very much for gracing
    our Committee room, one of the really outstanding Members of
    the U.S. Senate. And, Senator Mathias, if I might, I would like
    to just quote from part of your letter:
        ``While the methods employed to deter voting differ today
    from those in vogue 40 years ago, the deplorable objective
    remains the same: to help destroy the integrity of the election
    process by suppressing participation, especially by minorities.
    Because these more modern methods of coercion and intimidation
    do not fall neatly within the gambit of current law,
    legislation amending Section 1971(b) is needed. I believe S.
    453 fills that gap admirably.''
        Recently we celebrated the 42nd anniversary of the voting
    rights march of Selma, Alabama. Our own House colleague,
    Congressman John Lewis from Georgia, was savagely beaten and
    tear-gassed by police for peacefully marching and protesting on
    what is now known as ``Bloody Sunday.'' He and so many others,
    including Dr. Martin Luther King, Jr., ultimately led a
    peaceful march into Montgomery to help their fellow citizens
    register to vote. Media coverage of the mistreatment of our own
    American citizens garnered worldwide attention and led
    President Johnson to introduce the Voting Rights Act. Congress
    passed this historic Act in less than 5 months.
        Today we have the obligation and the duty to fulfill the
    promises made by Congress and the States nearly 140 years ago,
    after the end of the Civil War, and over 40 years after the
    enactment of the Voting Rights Act.
        [The prepared statement of Senator Cardin appears as a
    submission for the record.]
        At this time I would recognize Senator Feingold for opening
    comments.

    STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
                           STATE OF WISCONSIN

        Senator Feingold. Thank you, Mr. Chairman, for holding this
    hearing. I have to leave shortly for a hearing of the
    Intelligence Committee, but I want to thank you for recognizing
    me to say a couple of words, and I am honored to be in the
    presence of Senator Mathias as well and my colleagues on this
    panel.
        I strongly support this bill, and I am pleased to join you
    as an original cosponsor. S. 453 targets the deceptive
    practices and voter suppression tactics that have become
    endemic in American elections since the enactment of the Voting
    Rights Act. This bill would have been timely 20 years ago.
    Today, Mr. Chairman, it is essential. Voter suppression tactics
    poison the democratic process, especially because they are
    frequently used against the most vulnerable segments of the
    electorate. Young people, racial and ethnic minorities, and the
    elderly are too often subjected to misleading phone calls,
    threatening fliers and intimidating so-called ballot security
    programs designed to keep them from exercising their right to
    vote. These tactics strike at the heart of our democracy. They
    are nothing less than an attempt to undermine the hard-won
    gains of the civil rights movement. Every anonymous flier,
    every thug at a polling place, every caging list is a reminder
    that Jim Crow was not that long ago.
        This bill represents a renewed commitment to protecting and
    strengthening the right to vote for all Americans. We have a
    responsibility to fight back against those who commit these
    acts, to protect the people they victimize, and to preserve the
    integrity of the electoral process.
        Mr. Chairman, some people have questioned whether this bill
    is necessary and even whether voter suppression actually
    occurs. I submit there is ample evidence--a shameful amount of
    evidence--of these deceptive practices accumulated over a 25-
    year period. Let me discuss just a couple examples, some of
    which may be familiar to my colleagues and our witnesses today.
        In 1986, the RNC implemented a caging program in Louisiana
    designed to, in the words of one RNC operative, ``eliminate
    60,000 to 80,000 folks from the rolls and keep the black vote
    down considerably.'' For the record, I have a Washington Post
    article which details that caging program.
        In 1990, 150,000 North Carolina voters, most of them
    African-American, received postcards which falsely claimed that
    a voter was ineligible unless he or she had lived in the same
    voting precinct for 30 days before the election. I will submit
    a New York Times article about that incident for the record.
        In 2000, a Federal judge found ``there was intimidation
    particularly targeted at Native Americans in Charles Mix
    County, South Dakota, by persons who were acting on behalf of
    the Republican candidate for the U.S. Senate. The judge issued
    a temporary restraining order prohibiting Republican campaign
    workers from following Native Americans from the polls and
    taking down their license plate numbers. I have a copy of that
    temporary restraining order for the record.
        Finally, I want to comment on the flier that Senator Cardin
    mentioned which appeared in certain African-American
    neighborhoods in Milwaukee in 2004. It provides a series of
    blatantly false statements, including a warning to voters that,
    ``If you have ever been found guilty of anything, even a
    traffic violation, you can't vote in the Presidential
    election.'' The flier states that, ``If you violate any of
    these laws, you can get 10 years in prison and your children
    will get taken away from you.''
        Unfortunately, this kind of flier is not unique to
    Wisconsin or to the 2004 election. Attorney General Gansler
    refers to a very similar flier in his testimony which appeared
    in Baltimore in 2004. Indeed, this kind of flier, which
    represents one of the worst kinds of voter suppression, has
    been endemic to American elections for the last 50 years.
        I will place in the record the text of a flier distributed
    in Texas in 1964, a year before the Voting Rights Act. The
    flier says that a list of voters has been drawn up to be
    arrested after the vote for committing any of a list of
    offenses, including unpaid traffic and parking tickets, having
    been questioned by the police, and delinquent child support
    payments.
        Some may think these kinds of tactics are humorous or just
    run-of-the-mill political dirty tricks. I disagree. People who
    create and distribute these kinds of fliers are attempting to
    intimidate their fellow citizens into not exercising the
    franchise that is guaranteed to all of us. This bill is the
    Senate's opportunity to fight back on behalf of citizens and
    voters, and I again thank the Chair for the hearing and for
    letting me make my remarks.
        [The prepared statement of Senator Feingold appears as a
    submission for the record.]
        Senator Cardin. Thank you very much, Senator Feingold.
        Our first panel are two of our colleagues who have been
    leaders in regards to strengthening our laws against crime and
    ensuring the integrity of our system for all of our citizens. I
    am pleased to recognize the Honorable Charles Schumer and the
    Honorable Barack Obama. It is a pleasure to have you on our
    panel.

     STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
                           STATE OF NEW YORK

        Senator Schumer. Thank you, Mr. Chairman, and first I want
    to thank you, Senator Cardin, for the incredibly good work you
    have done on this issue. Your experiences in Maryland have
    proved to be a starting point for your getting involved in
    making sure we do something nationally as it affects all the
    States, and I thank you for it.
        And, of course, I want to thank my colleague and the lead
    sponsor on this legislation, Senator Obama, who, again, felt
    just as we did, when hearing about these things, they make your
    blood boil. And he has worked very carefully and thoughtfully,
    as is usual, on putting together both a strong but effective
    and balanced piece of legislation.
        I also want to thank Chairman Leahy for allowing us to hold
    this hearing.
        The right to vote is the wellspring of our democracy. It is
    the most cherished right of citizenship. Yet far too often, our
    elections are marred by a troubling pattern of
    disenfranchisement by deception.
        We are seeing--and it is more frequent now than before--a
    host of cynical and concerted efforts to keep voters away from
    the polls and to interfere with their choice of candidates. All
    too frequently, these dirty tricks target minority or
    disadvantaged communities. Make no mistake about it: These
    deceptive and intimidating practices are a form of
    disenfranchisement just as surely as poll taxes were. And we
    have seen the examples. I am not going to repeat them because
    you held them up, Mr. Chairman.
        These deliberate lies and all the deceptive practices we
    have seen in recent elections are, in a word, repugnant. They
    are despicable. I call them disgusting. They are an affront to
    the civil rights and intelligence of the voters, and they
    insult our democracy. They go beyond--you know, we all know
    that, as Boss Plunkett said back in the 1870s, ``Politics ain't
    bean bag.'' And people respect that, and campaigns these days
    are very tough. But this goes way beyond that. This goes to the
    health, the vitality of a democracy. And when things like this
    are allowed to happen, it really says something about the
    status of democracy in America.
        And yet when these dirty tricks, these poisons occur, they
    are not prosecuted, and that is because it is not a Federal
    crime to disenfranchise voters by deception. The literature
    that you experienced in your election, Senator Cardin, well, I
    was furious, and even before you were actually sworn into
    office, I was pushing the Justice Department to investigate
    these fliers. They told me there was no legal basis to do so.
    If there was ever an evidence that spoke overwhelmingly in
    favor of the law we are pushing, it is that statement from the
    Justice Department that they cannot do anything about it.
        So we have the power and responsibility to give the
    Department of Justice the tools to investigate and punish acts
    of voter deception and intimidation. Our bill recognizes that
    voter disenfranchisement by deception is just as serious as
    voter intimidation, which has long been criminalized. And the
    penalties are tough--up to 5 years in jail. Somebody who does
    this, Mr. Chairman, does not deserve a slap on the wrist or
    even a fine. They deserve to go to jail just like a bank robber
    does because they are robbing people of their democracy. And I
    think the penalties are tough but deserved. I mean, the people
    who do these things make my blood boil far more than people who
    do hard-hitting campaign ads, even ads that might be below the
    belt.
        So our bill is tough, but at the same time it is narrowly
    tailored to protect both free speech and the right to vote. It
    does not just cover any information communicated during an
    election. It focuses on voter access to basic and verifiable
    facts that are essential to exercising the right to vote. The
    basic facts are where, when, and how you can cast a vote,
    whether you are eligible to vote, and whether an organization
    or person you trust has endorsed a particular candidate. So it
    is very limited, but very focused.
        With our bill, the Justice Department's tools will not be
    limited to punishing wrongdoers after the fact. The Department
    will have a responsibility to communicate corrected information
    in order to undo the damage by deceptive practices before the
    polls open so that the damage can be undone.
        Let me be clear about what this bill will not do. It will
    not criminalize honest mistakes. Only deliberate lies that have
    no place in our democracy will be prosecuted. It will not
    impede legitimate political speech. It is narrowly tailored, as
    I mentioned.
        And let me say, Mr. Chairman, this should not be a partisan
    issue. We should have people on both sides of the aisle
    supporting this because we all care equally about our
    wonderful, long-lived, and cherished democracy.
        Opponents of this legislation may claim that it is
    unnecessary or flawed. I could not disagree more. The bill is
    urgently needed, it is carefully crafted, and it is no more
    than what we owe the voters across America.
        I would ask unanimous consent my entire statement be placed
    in the record, and thank you for having this hearing.
        [The prepared statement of Senator Schumer appears as a
    submission for the record.]
        Senator Cardin. Without objection, the statements of all
    the witnesses will be included in the record.
        Senator Obama, the principal sponsor of S. 453, we thank
    you very much for your leadership on this issue and so many
    other issues of concern to enfranchise the people of our
    country.

     STATEMENT OF HON. BARACK OBAMA, A U.S. SENATOR FROM THE STATE
                              OF ILLINOIS

        Senator Obama. Thank you very much, Senator Cardin, and I
    want to thank Senator Feingold for being here and Committee
    Chairman Leahy for holding this hearing. I want to express my
    thanks to Senator Mathias for coming in and for his statement.
        The essence of this is how can we bolster the integrity of
    our electoral system. In January, I was pleased to reintroduce
    the Deceptive Practices Act and the Voter Intimidation Poverty
    Act along with my colleague Senator Schumer. And he has shown
    outstanding leadership on this issue, and I am very grateful
    for all his help.
        Several other members of this Committee, such as Chairman
    Leahy, Senators Feingold and Kennedy, and, of course, yourself,
    Mr. Chairman, have joined this bill. I am also honored that
    there is a companion bill in the House that is supported by
    Judiciary Committee Chairman John Conyers.
        I also want to thank the many groups that have endorsed
    this legislation for their support. A number of them are here
    today, especially the People for the American Way, the Lawyers
    Committee for Civil Rights under the Law, the Mexican American
    Legal Defense and Education Fund, the NAACP, and Common Cause.
        It is hard to imagine that we should need a bill like this,
    but, unfortunately, there are people who will stop at nothing
    to try to deceive voters and keep them away from the polls. And
    what is worse, these practices often target and exploit
    vulnerable populations such as minorities, the disabled, the
    elderly, and the poor. While these practices have a long
    history, we saw some high-profile examples of this in the 2006
    election cycle. You, Mr. Chairman, experienced some egregious
    examples of it, and you have mentioned, as have Senator Schumer
    and Senator Feingold, some of those other examples.
        Of course, most of these pieces of literature that are
    distributed have no basis in fact. They are made with only one
    goal in mind: to keep Americans away from the polls. We see
    these problems year after year in election after election, and
    my hope is that this bill will finally stop these practices in
    time for the next election.
        The Deceptive Practices and Voter Intimidation Prevention
    Act makes voter intimidation and deception punishable by law,
    and it contains strong penalties so that people who commit
    these crimes suffer more than just a slap on the wrist. The
    bill also seeks to address the real harm of these crimes--
    people who are prevented from voting by misinformation--by
    establishing a process for reaching out to those misinformed
    voters with accurate information before the time is completed
    for them to be able to vote so that they can actually cast
    their votes in time.
        Now, there are some issues in this country that are
    inherently difficult and inherently political. We are dealing
    with one right now on the floor with immigration. There are a
    lot of conflicting interests and conflicting values at stake
    there. But making sure that every American is able to cast a
    ballot should not be one of those difficult issues. There is no
    place for politics in this debate, no room for those who feel
    that they should be able to gain partisan advantage by keeping
    away people from the polls.
        As members of this Committee know all too well, politics
    have colored some of the recent actions of the Department of
    Justice, so our bill includes a private right of action to
    ensure that individuals who are victims of deceptive
    information have legal recourse if an Attorney General turns a
    blind eye to these types of practices.
        The New York Times stated in its January 31st editorial on
    this issue that our bill ``is an important step toward making
    elections more honest and fair. There is no reason it should
    not be passed by Congress unanimously.''
        I would ask, Mr. Chairman, that this editorial be placed
    into the record.
        Senator Cardin. Without objection, it will be.
        Senator Obama. In conclusion, I think it is time to deal
    with this problem in a bipartisan fashion. I look forward to
    working with you, Mr. Chairman, Chairman Leahy, Ranking Member
    Specter, my outstanding colleague Senator Schumer, and those on
    the House Committee who are also interested, to make sure that
    we pass this legislation this year.
        Thank you very much.
        Senator Cardin. Well, let me thank both of you for your
    testimony.
        Let me just make an observation and try to get your
    response to it. I saw this type of literature in 2002 and in
    2004 and was outraged by it. It was difficult to trace who was
    putting out the literature. Sometimes it appears with no real
    responsible individual willing to claim that they put out the
    material. But in 2006, it was blatant. In my State, it was a
    major political party's candidate for Governor and the U.S.
    Senate that just put that literature out the night before the
    election without any hesitation whatsoever and thought it was a
    good campaign strategy, that one of the strategies that we all
    use in campaign is get out the vote. We try to get out our
    vote. We spend a lot of resources knocking on doors and making
    phone calls and sending literature to communities in which we
    are trying to get people out to vote.
        So I expect their attitude was, well, if getting out the
    vote is OK, what is wrong with trying to suppress the vote?
    What is wrong with that tactic as part of a way to win
    elections? It is pretty effective. If I can keep the minority
    vote numbers down, it has an impact on who is going to win the
    election.
        I find that just unacceptable, as I know you two also
    believe. But it seems to me we have to set the ground rules
    because if you do not set the ground rules, what happened in
    2006 is only going to accelerate, and you will see more and
    more of these blatant efforts to affect the outcome of
    elections.
        So I just really want to get your observations on that. How
    far can we go in this area? And how does the First Amendment
    play into making sure that we get it done right?
        Senator Obama. Well, look, political speech is the most
    valuable and most protected speech, and we are very careful to
    make sure that that speech is not impacted by this bill.
    Political speech does not encompass the right to deliberately
    lie or provide misinformation to voters in order to suppress
    the vote. And so that is the line that we draw on this bill. We
    are very careful to make sure that it is not impacting
    political speech that says Senator Obama voted against such-
    and-such or has failed his constituents on this issue or that
    issue. That obviously is appropriate--not always comfortable
    but appropriate.
        Senator Schumer. Blatantly false.
        [Laughter.]
        Senator Obama. Absolutely. So I think that you make the
    broad point properly, Mr. Chairman, and that is that there is a
    great difference between trying to increase your own vote and
    suppressing somebody else's vote. And those are tactics that
    are not acceptable.
        We think that this is a useful baseline, as you put it.
    There are still going to be some areas that are not reached by
    this bill. The New York Times noted that one of the most
    egregious tactics that was used were these robo-calls that were
    used under the guise of one candidate trying to get the vote
    out, essentially irritating people so badly that it suppressed
    potential voters in certain areas.
        You know, there are always going to be some dirty tricks
    out there that are employed. What we do not want to do, though,
    is to permit some of these tactics that we can deal with from
    preventing people from exercising their franchise and
    maintaining a robust democracy.
        Senator Schumer. Senator Obama said it all.
        Senator Cardin. I think it is a healthy message. It makes
    it clear what we are attempting to do, and if this bill becomes
    law--and I certainly hope it will be--it puts political parties
    and candidates on notice.
        Senator Obama. And I think you make a very important point,
    Mr. Chairman. Some of this is prophylactic. If people know that
    the law takes this seriously, they will not do it. The reason
    that a lot of these practices are engaged in right now is
    because people feel as if there are no consequences to these
    actions.
        Senator Schumer. We did debate whether there should just be
    a fine or jail time, which obviously is far more serious,
    taking away someone's freedom. And I think the consensus not
    only among ourselves as the sponsors but among many people and
    experts we talked to is that jail time is perfectly appropriate
    and necessary so that people do not think it is just a slap on
    the wrist or you pay a price for doing this.
        Senator Cardin. Well, and I applaud you for that. I think
    you made the bill tough, but you have also focused it. You have
    erred on the side of making it a narrowly focused bill so that
    it does meet the constitutional test, and I think you needed to
    do that. But I also do think it is a clear message that, yes,
    we understand you may be able to figure out ways to try to get
    around this bill, but that is not what we should be doing. We
    should be, as Americans, trying to figure out ways to win
    elections clearly on the issues and on legitimate campaign
    strategies and not trying to suppress minority vote.
        Let me thank both of you for your leadership on this issue
    and for being here. I appreciate it.
        Senator Cardin. Our second panel, I am very pleased to have
    the Attorney General of the State of Maryland, the Honorable
    Doug Gansler. Attorney General Gansler is the former State's
    Attorney of Montgomery County, and he has broad experience in
    the criminal justice system and has a distinguished career in
    our State and is the new Attorney General for the State of
    Maryland.
        We also have the County Executive from Prince George's
    County, Maryland, Jack Johnson. Jack is also a former
    prosecutor, former State's Attorney from Prince George's County
    and has a very distinguished record as the State's Attorney
    significantly reducing crime in Prince George's County, which
    is, of course, our neighboring county. It borders the District
    of Columbia. He has done a super job as our leader in Prince
    George's County.
        It is a pleasure to have both of you before our Committee,
    and we will start off with General Gansler.

     STATEMENT OF HON. DOUGLAS F. GANSLER, ATTORNEY GENERAL, STATE
                    OF MARYLAND, BALTIMORE, MARYLAND

        Mr. Gansler. Thank you, Senator, and thank you for your
    leadership on this issue. Immediately after the election,
    Senator Cardin, you called our office and we got together.
    While we have put together a task force to look at voter
    irregularities on the State level, your leadership here on the
    Federal level has clearly been exemplary. And I want to also
    think the principal sponsor, Senator Obama, and Jack Johnson
    for being here today. He is going to focus on the issues in
    Prince George's County. And I would like to mention the
    Director of our Civil Rights Department of the Attorney
    General's Office, Carl Snowden, is here as well.
        I would like to focus my comments--my testimony is in the
    record, but I would like to focus my comments on the question
    you asked, Senator, regarding the juxtaposition of the First
    Amendment with this bill. It seems to me there are three
    categories of deceptive communications at issue here in
    elections.
        The first is the mischaracterization of a candidate's
    viewpoint. One of the most classic examples would be the Willie
    Horton ads of days gone by, where you take a situation out of
    context. It is fair game, it is protected by the First
    Amendment, it is somewhat insidious and adds cynicism to the
    process, but it is protected by the First Amendment.
        The second category would be the category that is addressed
    by this bill and one that Mr. Johnson is going to be talking
    about, which is the flier in Prince George's County, which is
    really akin to libel; that is, it is knowingly making a false
    statement in an effort to sway a particular voter or voters.
    The Prince George's County flier would be the classic example
    of that when these three people clearly endorsed somebody else
    and then on election day all of a sudden they are purported to
    have endorsed a different candidate.
        My comments would focus and I think the bill properly
    focuses on the third category, and the third category is
    statements, deception that is not focused on swaying a
    particular candidate--or a particular voter to vote for a
    particular candidate; that is, it is not aimed at persuasion
    but aimed at suppression. And that is the problem, and that is
    what this bill addresses. It may or may not be motivated by
    wanting to sway voters toward a particular candidate or away
    from a particular candidate. But the motives are irrelevant,
    and that obviously is the case in the Baltimore City case where
    it says, ``Urgent Notice. Come out to vote on November 6th.''
    The election was not on November 6th.
        ``Before you come to vote, make sure you pay your parking
    tickets, motor vehicle tickets, overdue rent, and, most
    important, any warrants.'' Now, that does not talk about any
    candidate at all. What that is aimed at is voter suppression,
    keeping people away from the polls, which is precisely why the
    1965 Voting Rights Act was passed in the first place.
        This legislation that is put forward takes a measured
    approach to addressing the important issue, imposing penalties
    for deceptive communications where the communication does two
    things: first, the person who puts it out knows the information
    to be false; and, second, acts with the intent to prevent
    another person from exercising the right to vote in an
    election. The legislation properly, in my view, respects the
    First Amendment's guarantee of freedom of speech while
    recognizing the strong Federal interest in safeguarding the
    right to vote and prohibiting tactics that have frequently been
    employed in racially discriminatory ways.
        The examples of such tactics that have been discussed today
    illustrate that shame has proved to be an insufficient
    deterrent in this area for those who would engage in such
    practices. Senate Bill 453 is an important component of what
    has to be a comprehensive approach, at both the Federal and
    State levels, to ensuring that voter rights are protected.
        So I strongly endorse the bill and its passage. I commend
    you, Senator, for your leadership and thank you for the
    opportunity to testify today.
        [The prepared statement of Mr. Gansler appears as a
    submission for the record.]
        Senator Cardin. Mr. Johnson?

      STATEMENT OF HON. JACK B. JOHNSON, COUNTY EXECUTIVE, PRINCE
          GEORGE'S COUNTY, MARYLAND, UPPER MARLBORO, MARYLAND

        Mr. Johnson. Mr. Chairman, I am very pleased to be here and
    actually honored to be here. Let me begin by offering my
    support for S. 453. It is absolutely critical that this bill is
    passed.
        Let me talk about two things. On the evening of the
    election, as I traveled the county, I saw thousands of signs
    that said, ``We are not slave to the Democrats.''
    Interestingly, the signs were in the very same colors of this
    sign--red, black and green. And what it referenced is the dark
    period in our history, and it dealt with the whole substance of
    slavery. And, in essence, what it said was that the Democrats
    were treating African-Americans as slaves.
        Interestingly, our county is a very large African-American
    community, and I believe that that literature was designed to
    suppress the African-American vote on the next day of the
    election.
        Now, I am not sure whether that is illegal, and I am not
    sure that that is not protected. But the point is that it is so
    egregious and designed to suppress the vote.
        Now, the African-American tie to slavery and the Democratic
    Party issue pales in terms of what I saw the next morning. As I
    said, this slavery signage paled by comparison with what I
    encountered on election day. I woke up and went to the polls
    early to gauge what was going on, as I often do. I went to my
    polling place and saw someone I did not know handing out
    literature saying that I was supporting the candidate for U.S.
    Senate who was a Republican. The literature said, ``These are
    Our Choices.'' On the cover was my picture, the leader of the
    Democratic Party allegedly endorsing not only the Governor, who
    is a Republican, but also the candidate for the U.S. Senate.
    This was a falsehood. I do not believe--it is deceptive, it was
    a hoax, and I do not believe at all that it is free speech
    protected by the First Amendment.
        Phone calls came early and often that election day. Angry
    citizens wanted to know why I was a turncoat and why I had
    abandoned the Democratic Party. I was simply flabbergasted that
    my name and likeness could be appropriated in such a manner.
    Rather than using my time to visit with voters and discuss
    issues that were of concern to me and the county, I spent the
    entire day, Mr. Chairman, as you know, trying to inform
    citizens that this was a hoax and that it was not true.
        The outrage continued all day as we learned that the people
    that were distributing this literature came in early that
    morning from Philadelphia, all of them homeless, having been
    promised a ride back home as well as $100. Many of them were
    later abandoned at the polling places, and many of them, when
    they found out the truth, decided that they would not pass out
    this literature. Delegate JoAnne Benson and others had to reach
    into their own pockets and pay many of the homeless people
    rides back to Philadelphia. Of course, everyone denied that
    they had anything to do with these fliers. No one had no way of
    knowing how it happened, and nobody knew anything.
        Many citizens told me they saw my face on the literature
    and voted accordingly. Voters should not expect to see signs
    posted about being slaves, and voters should not be handed a
    false ballot with pictures of people they have come to trust
    and respect purportedly supporting candidates they have never
    endorsed. And let me say I found it just so offensive that,
    again, my likeness and my name would be associated with the
    Republican Party endorsing these candidates.
        I want to make clear, though, that as a Democrat, I do vote
    for various people, and I saw Mac Mathias, Senator Mathias
    here, and that was the first vote that I cast when I was a
    young person and first moved to the State of Maryland, voting
    for Mathias because I knew the record he had on civil rights,
    justice, liberty, and the things that are important.
        I have seen firsthand the lingering vestiges of slavery and
    Jim Crow laws. The memories pain me, and those who live in our
    county and throughout America. There are those who seek to
    exploit this sad history, but I have confidence that this and
    other practices I described here today can be curtailed with
    the adoption of S. 453. I urge you to support and I urge that
    the Congress will support this piece of legislation. It is
    absolutely important.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Johnson appears as a
    submission for the record.]
        Senator Cardin. Let me thank both of you for your
    testimony. Senator Mathias wanted to be here today. He knew
    what the hearing was about and wanted to be here, and it was
    not easy for him to physically get here. And, without
    objection, we are going to put his letter into the Committee
    record. I appreciate both of you acknowledging that.
        Jack, you are rather calm today, but I remember talking to
    you the day before the election, and you were not quite as
    calm. There was a pattern in Maryland. You mentioned the
    slavery posters that were up, that we do not know for sure who
    put up those posters because they were not identified. But it
    was part of a pattern to try to anger African-American voters
    so perhaps they would not show up to vote. They knew that a
    large number would not vote Republican. If they could just keep
    the numbers down, it would help the Republican candidates.
        But then we did see this brochure that you refer to that
    came out the night before the election, and that has the
    authority line of the Republican candidate. So we know who put
    that out, and that is clearly, as you put it, a hoax.
    ``Misleading'' is, I think, kind to it. But once again, it was
    an effort to try to confuse minority voters in the largest
    jurisdiction in Maryland of minority voters, Prince George's
    County, a critical county in the election.
        And then we also know about the busing in--by the way, we
    know that that was paid for by the Republicans because it was
    acknowledged, bringing in homeless people from Philadelphia who
    had no idea what they were doing. They thought they were
    getting a job in Maryland handing out the literature on
    election day so they could have an African-American face
    handing out the literature in the polling places--again, to try
    to adversely affect the minority vote.
        But it goes beyond that. The Republicans had control of the
    election process because we had a Republican Governor, and as I
    have talked to the Attorney General about, in Prince George's
    County and in Baltimore City, the two large jurisdictions of
    African-American voters, there were more voting machines that
    did not function and the lines to vote were the longest. I
    visited Prince George's County late on election day and was
    shocked to find out that the average wait to vote in many of
    the precincts in Prince George's County was 2 hours to cast a
    vote.
        Now, that was not true in other jurisdictions in our State.
    Where I voted, it took me 10 minutes to vote during a pretty
    busy time.
        So you put all this together, and you see where there were
    instructions that the Republicans had at one point to start
    challenging--have their poll watchers challenge voters
    indiscriminately, again, in order to, we think, make the lines
    longer.
        This is a pattern to try to win an election by diminishing
    a vote, not increasing a vote. And it has got to be dealt with
    because it is the poll tax of our time.
        I know the bill that is before us is narrowly focused
    because we need to do that constitutionally. I do not think we
    could outlaw the slavery-type poster. I would like to do it. I
    would hope that people would be outraged by it and it will not
    have the intended effect, and that the robo-call that you
    referred to was pretty clever, because it was somewhat of an
    obnoxious robo-call mentioning the opponent's name over and
    over again hoping that people would hang up and think that he
    was the person that was calling in order to aggravate voters.
        But it seems to me, Attorney General Gansler, that we need
    to look at strengthening not only the Federal laws but State
    laws in order to make these types of patterns illegal and to
    give both parties due notice that we will not tolerate that
    type of conduct by our political parties or by our candidates.
        Mr. Gansler. I agree with that, Mr. Chairman, and I think
    this bill deals with the speech conduct, the deceptive speech,
    and that ought to be Federal because it should not--this type
    of conduct, just like poll taxes and literacy tests were
    outlawed by the Voting Rights Act of 1965, this is really an
    extension of that, and that ought to be pervasive throughout
    the country.
        On the State level, each State, unfortunately, or
    fortunately, has a different method by which they vote,
    different machines, actually different technology, and so
    forth. In Maryland, we have assembled a task force, and your
    office and you have been instrumental in looking at those
    issues as well. And I was the same way. I was absolutely
    disgusted at what I saw in a placed called Evangel Cathedral in
    Prince George's County. I was there at 11 o'clock, and people
    literally took 3 hours to vote. Of course, what was heartening
    was how many people stayed there to exercise their franchise.
    What was discouraging were the people who had 1 hour for lunch
    and had to leave.
        We are going to look at it on the State level as to why
    that happened, how it happened, and, most importantly, to make
    sure it does not happen again--without really casting blame and
    going back, because there is no law, there is nothing to
    enforce there, but just to make sure it does not happen and
    make sure we have the laws on the books so that we can enforce
    it if, in fact, it happens again next time, because it is hard
    enough to get people to go out and vote. There is a lot of
    cynicism involved in politics and whether somebody's vote
    counts. Much of that is because of the nature of the political
    ads we have, and what this bill does is make sure that the
    political ads at least stop at a particular line, a line
    protected by the First Amendment, and does not cross that line
    into libel or into content that is specifically designed to
    suppress the vote. But on the State level, we also have to take
    measures as well.
        Senator Cardin. Right.
        Mr. Johnson. Senator, if I could just say that I wanted to
    put the entire concept of what happened in Prince George's
    County in context. You are absolutely right, I am calm today,
    but on election night it is probably the most important
    election we have had in 25 years in Prince George's County. The
    U.S. Senate was on the line. It is not one sign that said the
    Democrats in a sense enslave black people. The roads were paved
    with it, just for miles along at 10 feet apart at the most.
    ``We are not slaves to the Democrats.'' The Democrats are
    enslaving African-Americans in essence.
        Then the next morning you get up and you see a total hoax,
    falsehood, in the terms of a literature that says--and everyone
    knew that being the leader of the Democratic Party and that
    many of the Democrats in the county follow my advice on where
    we should go in the election. So my likeness is crucial in the
    election. It is appropriated, it is stolen, it is taken, and it
    is false.
        Then the other thing is that we go to the polls on election
    day. I walked to my polling place. Not only at my polling place
    I am getting this literature, but, more importantly, the polls
    are not open. It is raining, as you recall. At 7 o'clock, none
    of the machines are open. At 7:30, none of the machines are
    open. At 8 o'clock, the machines are not open. I said, ``What
    is the problem?'' ``Oh, it is a technical problem with a
    computer.''
        I got on the telephone and called our computer experts,
    said, ``Get down here because the polls are not open, and they
    are telling me it is a technology issue. You need to come and
    fix it.''
        My technology chief called everybody--because the
    Government is closed. You have to come in and help fix the
    problem. Many people left because they intended to vote before
    going to work. When they came back in the evening, the lines
    are 2 hours long and they cannot vote. We missed many votes on
    election day. And as you know, this was a critical election.
    The experts said it could go any way. And we lost many votes,
    and they knew that the votes would turn in Prince George's
    County in one election.
        We understand that S. 453 deals with the issue of
    falsehoods, which the First Amendment appropriately protects--
    or will allow, but the other issue was designed to show the
    problem that we confront and that I think is confronted all
    over America in having a fair and honest and open election,
    which is the essence of our democracy.
        Senator Cardin. I need to put in the record that I agree
    with you that hundreds, if not thousands, of potential voters
    were denied the opportunity to vote in this past election in
    Prince George's County as a result of the cumulative impact of
    all the methods that we have talked about.
        Having said that, to the credit of the people of Prince
    George's County, you had record turnouts, you had large
    turnouts of voters that stayed and cast their votes. And the
    margin that I received in that election was larger than the
    margin in Baltimore City, which is my base.
        I point that out because the voters of Prince George's
    County I think saw through a lot that was happening.
        Mr. Johnson. They did.
        Senator Cardin. That is not to say that there were not a
    lot of people disenfranchised. There were, no question about
    it. They could not wait 3 hours, as the Attorney General said.
    They could not come back when the polls were not open in the
    morning. They were disgusted by what they saw, and they said,
    you know, ``Forget it. I am not going to show up to vote.''
    There is no question that it had an impact on the number of
    voters in the county. But I do really congratulate the people
    of Prince George's County, many of whom just said--to wait 3
    hours to vote is quite a commitment, and thousands did that.
        Mr. Johnson. Many people voted after midnight. That is how
    long the polls were--
        Senator Cardin. I know. I was waiting for those precincts
    to come in.
        [Laughter.]
        Senator Cardin. Let me thank both of you again for being
    here today. This is an important subject. I think we can learn
    a lot from the local governments. We are trying to get this
    right. I know that in Maryland we are trying to figure out what
    is the best voting system. There has been a lot of debate here
    in Washington as to the verifiable voting machines, et cetera.
    In Maryland, we changed ours in the last elections, and it has
    been somewhat confusing. But we need to make sure that voters
    can get their votes recorded properly and that tactics that are
    aimed at minority communities are not tolerated. And I know
    that the two of you will be continuing to work with us to make
    sure in our State we handle it correctly. But it is very
    important that you have a Federal partner. And the Justice
    Department has told us, as they told Senator Schumer, that they
    do not believe they have the laws necessary in order to deal
    with this today. That is why Senator Obama has introduced his
    bill, and if we can get that bill through Congress, then I
    think we can give you a Federal partner to try to make sure
    what happened in Maryland does not happen again or does not
    happen any place else in our country.
        Thank you.
        Mr. Gansler. Thank you, Mr. Chairman.
        Mr. Johnson. Thank you.
        Senator Cardin. We will now have panel three: Hilary
    Shelton, the Director of the Washington Bureau, National
    Association for the Advancement of Colored People; John
    Trasvina, President and General Counsel, Mexican American Legal
    Defense and Educational Fund; Richard Briffault, the Joseph
    Chamberlain Professor of Legislation, the Columbia Law School;
    William Canfield, a principal at Williams & Jensen; and Peter
    Kirsanow, Commissioner, United States Commission on Civil
    Rights.
        If I could ask you all to please stand in order to be sworn
    in. Do you affirm that the testimony you are about to give
    before the Committee will be the truth, the whole truth, and
    nothing but the truth, so help you God?
        Mr. Shelton. I do.
        Mr. Trasvina. I do.
        Mr. Briffault. I do.
        Mr. Canfield. I do.
        Mr. Kirsanow. I do.
        Senator Cardin. Please be seated. We will start with Mr.
    Hilary Shelton.

     STATEMENT OF HILARY O. SHELTON, DIRECTOR, WASHINGTON BUREAU,
      NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
                       (NAACP), WASHINGTON, D.C.

        Mr. Shelton. Thank you, Senator. Good afternoon. As you
    said, my name is Hilary Shelton, and I am the Director of the
    NAACP's Washington Bureau, the Federal legislative and national
    public policy arm of our Nation's oldest, largest. and most
    widely recognized grassroots civil rights organization, with
    membership units literally in every State in our country.
        The right to vote has always been an ultimate priority for
    the NAACP. For almost a century, the NAACP has fought against
    those who wish to suppress the votes of African-Americans and
    other racial or ethnic minority Americans through unfair or
    unjust laws, deception and/or intimidation.
        With the enactment of the Voting Rights Act of 1965, it
    became illegal for States or local municipalities to pass laws
    that in any way infringed on a person's constitutional right to
    register and cast an unfettered vote. Subsequent laws and
    reauthorizations of the Voting Rights Act have further
    addressed these tactics and made it harder for a State or a
    local government to infringe on a citizen's right and ability
    to cast an unfettered vote.
        Unfortunately, some people are still so desperate to win
    elections--elections that they fear they cannot rightfully
    win--that they resort to deceptive practices, misinformation,
    and lies to try to keep legitimate voters away from the polls
    or to support candidates whom they might not otherwise vote
    for. It is even more unfortunate that these practices often
    target and exploit many of the same populations that have
    historically been excluded from the ballot box. Specifically,
    vulnerable populations, such as racial and ethnic minorities,
    the disabled and/or poor and senior citizens are often targeted
    by those perpetuating these deceptive practices.
        To put it bluntly, it is now against the law to use
    official means to prevent whole communities of American
    citizens from casting a free and unfettered ballot. Yet there
    are still people and organizations in our country who are so
    afraid of the outcome of our democratic process that they must
    stoop to lies, duplicitous behavior, and intimidation to try to
    keep certain segments of our population and communities away
    from the voting poll.
        That is why the NAACP so ardently supports the Deceptive
    Practices and Voter Intimidation Prevention Act, S. 453,
    introduced by Senators Obama, Cardin, Schumer, Feingold, and
    others. This legislation seeks to address the real harm of
    these crimes--people who are prevented from voting by
    misinformation or intimidation--by establishing a process for
    reaching out to those voters with accurate information so they
    can cast their votes in time and ensure a more genuine outcome
    of the election. The bill also makes voter intimidation and
    deception punishable by law, and it contains strong penalties
    so that people are deterred from committing these crimes,
    knowing that they will suffer more than just a slap on the
    wrist if caught and convicted.
        The fact of the matter is that if an individual wins an
    election by a few votes, even when it can be proven that many
    potential voters were kept away from the voting booth by
    deceptive or intimidating behavior, the winner remains in
    office for the duration of the term. That is why it is so
    important to correct the misinformation before the election is
    over and the damage has been done.
        As we have heard and will hear today, examples of malicious
    deceptive practices, almost all of which targeted racial or
    ethnic minority populations, were rampant as recently as the
    general election in 2006. In Ingham County, Michigan, a
    partisan poll challenger confronted every African-American
    attempting to vote that day. There were no reports of any
    Caucasian voters even being questioned.
        In Orange County, California, 14,000 Latino voters got
    letters in Spanish saying it was a crime for immigrants to vote
    in a Federal election. It did not state or even clarify that
    immigrants who are citizens have the right to vote and indeed
    should.
        In Baltimore, Maryland, misleading fliers were placed on
    cars in predominantly African-American neighborhoods giving the
    wrong date for the upcoming election day.
        In Virginia, registered voters received recorded (robotic)
    calls that falsely stated that the recipient of the call was
    registered in another State and would face criminal charges if
    they came to the polls to vote that day. It was also in
    Virginia that voters received phone calls stating that because
    they were such regular voters they could vote this time by
    telephone, by simply pressing a number at that time for the
    candidate of their choice. The call ended by repeating that
    they had now voted and did not need to go to the polls. The
    disenfranchisement strategies continue.
        In all of these cases, a quick response to expose the lies
    that were told and provide corrected information to get
    legitimate voters to the polls in time to have their vote
    counted was clearly warranted. Unfortunately, nothing was done
    by the Federal Government to aid the clearing-up of these lies.
    It was, therefore, up to the local and national media, as well
    as advocacy groups like ours, to scramble to try to undo the
    damage. While it is difficult to conclusively demonstrate that
    these specific misdeeds had an impact on an election, it is the
    position of the NAACP that if even one lawful voter was
    deceived or intimidated and, therefore, did not cast a
    legitimate vote, that is one too many in a Federal election,
    and the Government must do something.
        When Presidential elections can be won or lost by a few
    hundred votes, it is up to the Federal Government to do all it
    can to ensure that every eligible person who wants to vote can
    and that every vote legitimately cast will be counted.
        It is unfortunate yet necessary that the Deceptive
    Practices and Voter Intimidation Prevention Act needs to be
    passed now, before another election comes, more lies are told,
    and more voters are locked out of our system of democratic
    process.
        The NAACP would like to thank the sponsors and cosponsors
    of S. 453 and H.R. 1281, the companion bill in the House, as
    well as Chairman Cardin and Senators Schumer and Obama for
    their leadership and their demonstrated commitment to this
    crucial issue. The NAACP stands ready to offer the assistance
    of our members, staff, and leadership to do all we can to
    encourage the quick enactment of the Deceptive Practices and
    Voter Intimidation Prevention Act.
        Thank you so much.
        [The prepared statement of Mr. Shelton appears as a
    submission for the record.]
        Senator Cardin. Thank you very much for your testimony.
        Mr. Trasvina?

      STATEMENT OF JOHN TRASVINA, PRESIDENT AND GENERAL COUNSEL,
     MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND (MALDEF),
                        LOS ANGELES, CALIFORNIA

        Mr. Trasvina. Chairman Cardin, Senator Hatch, thank you for
    the opportunity to testify on MALDEF's behalf in support of the
    Deceptive Practices and Voter Intimidation Prevention Act,
    cosponsored by 15 Senators, including 7 members of this
    Committee.
        My colleague Hilary Shelton puts it very, very well. Voter
    intimidation and deceptive practices present serious threats to
    the integrity of the American democratic system. Since our
    founding in 1968, MALDEF has used every legal and policy
    mechanism at our disposal to protect Latino voters from
    election practices that limit our ability to fully participate
    in American democracy. When voters are targeted for
    intimidation, and especially when they are targeted because of
    their race or national origin, all Americans suffer.
        We have recently witnessed serious incidents of voter
    suppression, intimidation, and deceptive practices aimed at
    Latino voters. When a community organizes politically and
    begins to make new political gains, it often becomes subject to
    deliberate attempts to halt its electoral advancement by any
    available means, including the use of deceptive practices and
    voter intimidation. For example, on November 7, 2006, MALDEF
    attorneys witnessed an extreme act of voter intimidation in
    Tucson, Arizona. Vigilantes, one of whom was armed, approached
    Latino voters before they entered the 49th Precinct polling
    place in an apparent attempt to suppress the Latino vote in the
    congressional midterm elections. One man carried a camcorder,
    another held a clipboard, and a third wore a law enforcement
    emblem and a holstered gun as they approached only Latino
    voters. The vigilantes asked Latino voters pointed questions
    about their political views, wrote down Latino voters' personal
    information, and videotaped them as they went to cast their
    vote. The vigilantes' website indicated that they were
    videotaping Latino voters in order to confirm that all Latino
    voters were properly registered to vote.
        You have heard about this letter in Orange County,
    California, sent to approximately 14,000 Spanish-surname
    voters. An outrage, this letter, solely meant to intimidate
    foreign-born voters. A list was bought by one of the candidates
    and used to send out on a third-party organization's letter
    head a letter written in Spanish that appeared on the
    letterhead of an organization well known for its views on
    immigration. It was signed by a fictitious person and contained
    numerous deceptive and intimidating statements.
        First, the Orange County letter falsely advised prospective
    voters that immigrants who vote in Federal elections are
    committing a crime that can result in incarceration and
    possible deportation. This is a false and deceptive statement.
    Naturalized immigrants, including our own Governor of
    California, who are otherwise eligible to vote are free to vote
    in Federal elections without fear of penalties.
        Second, the letter stated that ``the U.S. Government is
    installing a new computerized system to verify names of all
    newly registered voters who participate in the elections...
    Organizations against emigration will be able to request
    information from this new computerized system,'' according to
    the letter. Clearly not true, but clearly intended in an
    intimidating tone using false information to undermine voter
    confidence within the targeted group of voters.
        Finally, the letter stated that ``[n]ot like in Mexico,
    here there is no benefit to voting.'' This letter, representing
    a coordinated and extensive effort to suppress the Latino vote
    in the days leading up to a congressional election, was traced
    by State election officials to a candidate running for the
    congressional seat. And, in particular, foreign-born voters new
    to our process are more susceptible to these types of letters
    because they often have a system to fall back on, a system
    different than our American democracy. They are new to our
    American democracy, and it is easier to use these type of
    letters to intimidate them. That is why they are so wrong.
        S. 453 will provide critical tools to address the types of
    voter suppression and intimidation that MALDEF has combated in
    previous elections and expect to continue to combat as the
    Latino vote grows in strength over the coming years. S. 453
    will provide administrative and judicial remedies for voters
    targeted for intentionally deceptive practices, and it will
    provide security to all voters by providing for increased
    Federal protections in the elections process.
        If S. 453 had been in place during the 2006 election cycle,
    the deceptive practices of voter intimidation described would
    have resulted in different outcomes. MALDEF notified the United
    States Department of Justice, which had senior staff monitoring
    the election in Arizona, but we are unaware of any resulting
    Federal investigation or prosecution that has resulted from our
    notice that day. If S. 453 were Federal law at the time, DOJ
    would have been charged with conducting an investigation and
    prosecuting the offending parties if they engaged in
    intentional deceptive practices.
        The Orange County voter suppression letter described also
    would have triggered Federal action. We wrote to the Attorney
    General, who initiated an investigation but instituted no
    corrective actions to remedy the receipt of the misinformation
    contained in the letter. Instead, MALDEF worked with the
    California Secretary of State to distribute corrective action
    letters to all affected voters that contained the correct voter
    eligibility information.
        MALDEF supports this legislation as a remedy against voter
    intimidation and deceptive practices that limit Americans'
    ability to freely participate in the democratic process.
    Prevention of the reprehensible practices barred under S. 453
    strengthens our democracy.
        Thank you.
        [The prepared statement of Mr. Trasvina appears as a
    submission for the record.]
        Senator Cardin. Thank you very much for your testimony.
        Mr. Briffault?

    STATEMENT OF RICHARD BRIFFAULT, JOSEPH P. CHAMBERLAIN PROFESSOR
        OF LEGISLATION, COLUMBIA LAW SCHOOL, NEW YORK, NEW YORK

        Mr. Briffault. Senator Cardin, Senator Hatch, thank you for
    the honor of inviting me here to testify today. My name is
    Richard Briffault. I am a professor of law at Columbia Law
    School, specializing in election law issues.
        Congress plainly has the authority to adopt laws
    vindicating the integrity of Federal elections and protecting
    the rights of Federal voters. Moreover, S. 453 is entirely
    consistent with the First Amendment's protection of freedom of
    speech. My comments today will focus on the First Amendment
    question.
        S. 453 is aimed solely at preventing the knowing
    dissemination of falsehoods with the intent to interfere with
    the right to vote. The Supreme Court has repeatedly held that
    the First Amendment does not protect intentionally false
    statements of fact. In the Court's words, ``there is no
    constitutional value in false statements of facts.'' Moreover,
    S. 453 promotes the compelling governmental interest in
    electoral integrity. The Supreme Court has repeatedly indicated
    that the States may restrict even constitutionally protected
    speech when protecting the right of its citizens to vote freely
    for the candidates of their choice. Congress has a compelling
    interest in protecting voters from confusion and undue
    influence and in ensuring that an individual's right to vote is
    not undermined by fraud in the election process.
        S. 453 satisfies the Supreme Court's requirement that a law
    regulating false statements be narrowly tailored to avoid
    impinging on or chilling constitutionally protected speech. S.
    453 is narrowly tailored in three ways.
        First, S. 453 is limited to the communication of falsehoods
    that the speaker knows to be false and which the speaker
    communicates in order to prevent another person from voting.
    This is actually significantly tighter than the so-called
    ``actual malice'' test adopted by Supreme Court in New York
    Times v. Sullivan, which permits the prohibition of both
    knowing falsehoods and statements made with reckless disregard
    for truth or falsity. Innocent, merely negligent, or even
    reckless mistakes are not penalized under the bill.
        Second, S. 453 is limited to a very constrained set of
    false statements of fact--statements dealing with the time,
    place, or manner of voting; with eligibility to vote; and with
    explicit endorsements by persons or organizations. These
    involve simple statements of fact that do not remotely deal
    with matters of opinion, or the issues, ideas, or political
    views that make up an election campaign. Such false statements
    can serve only to confuse or mislead voters, deceiving some to
    vote against their own political preferences and leading others
    not to vote at all. To the extent that such false statements
    are aimed at lower-income groups, the less educated, or racial
    minorities, they will tend to systematically undermine the
    ability of the election to represent the views of the entire
    community.
        Third, the bill provides a tight temporal limit for its
    restrictions. The prohibitions on knowing communication of
    false information apply only during the 60 days before an
    election. As a result, S. 453 is narrowly tailored, which is
    the Supreme Court's standard, to promote the compelling
    governmental interest in electoral integrity and in the
    protection of the rights of voters.
        Approximately 18 States have adopted some laws prohibiting
    false campaign statements. Courts have generally upheld in
    principle bans on intentionally false election statements as
    constitutional, although some specific statutes have fallen. S.
    453 is actually more narrowly tailored than virtually all
    existing State false campaign statement laws and, thus, should
    have no problem in passing a constitutional challenge.
        In short, by protecting voters from false statements
    intended to deceive them or prevent them from voting, S. 453 is
    not only constitutional but actually promotes the values of
    political participation and personal autonomy that are at the
    heart of the First Amendment.
        Thank you again for inviting me to testify today.
        [The prepared statement of Mr. Briffault appears as a
    submission for the record.]
        Senator Cardin. Thank you very much for your testimony.
        Mr. Canfield?

    STATEMENT OF WILLIAM B. CANFIELD, PRINCIPAL, WILLIAMS & JENSEN
                         PLLC, WASHINGTON, D.C.

        Mr. Canfield. Good afternoon, Mr. Cardin and Senator Hatch.
    Thank you for inviting me to appear before you today. My name
    is Bill Canfield. I am a partner in the Washington, D.C., law
    firm of Williams & Jensen. You have my prepared statement, and
    I will not bother to go through it. I will make a few
    observations based on my unique experience. I think I am the
    only member of this panel and any of the other panels that
    actually practices in this area of the law. Therefore, I have a
    sort of fundamental understanding of how the courts look at
    these issues and how these issues get resolved in real-time
    setting in the head of a difficult and sometimes tendacious
    campaign.
        No one here, least of all myself, is arguing for or on
    behalf of voter intimidation or any other kinds of vile things
    that have been presented before the Committee today. What I
    urge you to do is look at the four issues that I outlined in my
    prepared remarks and focus your attention on those four issues.
    This bill is well meaning, I believe, but it is subject to some
    criticism based on its scope and the definitions that it uses.
        As a person who practices in this area of the law, I have
    to counsel my clients, which are campaigns and campaign
    committee managers and those kinds of professionals, as to the
    status of current law. It is a very difficult situation to do
    when the law that you have before you is open to various levels
    of interpretation.
        I would remind you that the Supreme Court has said in many,
    many instances that speech is the most highly protected of our
    values as American citizens, and of all kinds of speech, I
    would say political speech is probably the most singularly
    protected. And the courts have unanimously or regularly upheld
    that general principle, so I would urge the Congress in moving
    forward into an area that addresses, at least marginally or
    tangentially, the First Amendment's application to a bill such
    as this that we tread carefully and tread narrowly. Otherwise,
    the courts are going to have to, you know, interpret what you
    say and work their will.
        The other observation I would generally make is I have seen
    a tendency in the last 25 or 30 years to begin criminalizing
    various aspects of Federal election law. I think this is a
    terrible, terrible, terrible way to go. The Federal Election
    Commission exists for the sole purpose of overseeing the
    Federal Election Campaign Act. You have many agencies of the
    executive branch of Government who also have a role in this. To
    criminalize activities that have never been criminalized before
    within the electoral setting is a challenge, I think, in and of
    itself.
        The bill's provision for a private right of action by a
    person who is aggrieved by some form of intimidation also
    troubles me. I think it will lead to the opening of Pandora's
    Box. If it is easy now in the course of a campaign to file a
    spurious campaign complaint with the Federal Election
    Commission and hold a press conference and get the attention of
    the local press alleging that your opponent has engaged in some
    violation of Federal election law without any real interest in
    seeing how the FEC deals with the matter, which is always after
    the fact, think how easy it is going to be for some campaign
    manager who is aggrieved by the campaign tactics of the other
    side to get someone, either himself or some supporter, to file
    a private right of action, to go to the U.S. Attorney, to go to
    the Attorney General, to file a private right of action to try
    and suppress whatever that campaign manager does not like the
    other side doing to his campaign.
        So I just encourage you to look at the practical aspects of
    the bill's such as this that you are looking for because the
    difficulty we have as practitioners is actually implementing
    them after they have been agreed to by the Congress.
        [The prepared statement of Mr. Canfield appears as a
    submission for the record.]
        Senator Cardin. Thank you very much for your testimony.
        Mr. Kirsanow?

     STATEMENT OF PETER N. KIRSANOW, COMMISSIONER, U.S. COMMISSION
                   ON CIVIL RIGHTS, WASHINGTON, D.C.

        Mr. Kirsanow. Thank you, Mr. Chairman, Senator Hatch. I am
    Peter Kirsanow, a member of the U.S. Commission on Civil
    Rights, also a member--
        Senator Cardin. Would you turn your microphone one?
        Mr. Kirsanow. Thank you. I am a member of the U.S.
    Commission on Civil Rights and also the National Labor
    Relations Board. I am here in my personal capacity.
        The U.S. Commission on Civil Rights was established
    pursuant to the 1957 Civil Rights Act to, among other things,
    act as a national clearinghouse for matters pertaining to equal
    protection and voting rights.
        In furtherance of the clearinghouse function, the
    Commission on a regular basis conducts hearings on voter
    suppression, intimidation, and harassment. And the last such
    hearing was in October of 2006, just before the midterm
    elections.
        Based on the evidence adduced at that Commission hearing, I
    would urge the Committee in its deliberations of Senate bill
    453 to consider at least three deceptive practices not
    currently covered by the bill; that is, false registrations,
    multiple registration, and compromised absentee ballots.
        The evidence adduced shows that at least two prongs to the
    problem of deceptive practices that deal with election
    integrity: first is voter suppression, broadly defined; second
    is voter fraud.
        The empirical shows that the first prong is generally a
    function of provisional ballots and also of election
    disinformation. Sections 3(a)(2)(A)(ii) and 3(b)(1)(A)(ii)
    cover at least certain elements of the first prong, that is,
    preventing eligible voters from voting, but leave wholly
    unaddressed the second prong of affirmative voter fraud, and
    deceptive practice at least as consequential as voter
    suppression and intimidation, and possibly more so.
        For example, in the 2000 Presidential election, there were
    voluminous claims of rampant voter intimidation, harassment,
    and suppression. The Civil Rights Commission conducted a 6-
    month investigation immediately after the election. The Civil
    Rights Division of the Department of Justice also conducted an
    investigation.
        Despite the widespread claims of intimidation, harassment,
    and suppression, the investigation yielded just two ostensible
    cases of perceived voter intimidation, and the Civil Rights
    Division's investigation concluded that there was no credible
    evidence of any Floridians having their votes intentionally
    denied.
        Now, in contrast, a subsequent media investigation showed
    that there were at least 2,000 ballots cast illegally in
    Florida, and since the vote margin was 537 votes, the
    fraudulent votes were sufficient to affect the outcome of the
    election.
        This is not an isolated occurrence. The evidence adduced at
    Commission hearings, particularly from Mark Hearne, who is an
    adviser to the Carter-Baker Commission on Federal Election
    Reform, shows that there are numerous instances, suggesting
    numerous instances of significant voter fraud. The allegations
    include individuals and organizations that aid and abet
    ineligible voters to vote.
        Now, there are numerous cases that have been reported of
    people paid to register those ineligible to vote and fictitious
    characters. The infamous case in Ohio during the 2004
    Presidential election campaign of a canvasser paid with crack
    cocaine to register Dick Tracy, Mary Poppins, and scores of
    other equally notable voters is fairly well known.
        Again, these are not isolated circumstances. In 2001, a
    major voter registration drive in the black community of St.
    Louis produced 3,800 new voter registration cards. When some of
    the names appeared suspicious, elections officials reviewed all
    of the cards and determined that nearly every single one was
    fraudulent. Dogs, the dead, and people who simply did not want
    to register to vote were among the new registrants.
        Now, the problem is not simply that canvassers are being
    paid to register manifestly fraudulent voters. It is also that
    voting rolls throughout the country are being padded with
    perhaps hundreds of thousands of false and fraudulent names.
    Testimony before the Senate Rules Committee by John Sample
    showed that Alaska, for example, had 503,000 people on the
    voting rolls, yet there are only 437,000 people of voting age
    in Alaska.
        The problem is magnified by those who solicit and aid
    individuals to vote in multiple jurisdictions. One hundred and
    forty thousand Floridians are registered in multiple
    jurisdictions; 60,000 voters are registered in both North
    Carolina and South Carolina; 8,000 Kentuckians are registered
    in Tennessee. The bill is silent with respect to these
    deceptive practices, and multiple registrations and fraudulent
    registrations are compounded by the problem of compromised
    absentee ballot integrity. The practice of misleadingly
    assisting individuals to cast an absentee ballot can lead to
    wholesale disenfranchisement. This is a potentially troublesome
    problem, particularly with respect to bilingual ballots.
        This is not a minor concern. The 1998 Miami mayoral
    election was actually set aside because of rampant absentee
    ballot forgeries.
        These deceptive practices have the capacity to affect the
    outcome of an election. They undermine public confidence in the
    electoral process. And the bill is silent on these. These are
    significant omissions.
        So I would urge this Committee to consider including these
    deceptive practices in the bill's prohibitions.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Kirsanow appears as a
    submission for the record.]
        Senator Cardin. Well, thank you for your testimony, and I
    thank the entire panel for their testimony here today.
        Mr. Kirsanow, let me start with you, if I might. You were
    here during the testimony of what happened in my State of
    Maryland in 2006. Does that trouble you? Does that concern you
    that there were efforts made to provide the minority community
    with deceitful information during the course of the campaign
    and that minority voters had a much more difficult time in
    casting their votes in the State of Maryland?
        Mr. Kirsanow. Absolutely, Mr. Chairman. As a member of the
    Civil Rights Commission, we address these issues on a regular
    basis. These matters are brought before us quite often, and
    they are not simply relegated to your State. They are not a
    partisan issue. They go on both sides.
        During the 2000 Presidential campaign, there were radio ads
    in my community, Cleveland, Ohio--I live in a majority black
    neighborhood--that would talk about the fact that casting a
    vote for a Republican is casting a vote for lynching, that
    casting a vote for a Republican means another church is going
    to be burned down. Those kinds of things are reprehensible,
    despicable. We deplore those things.
        My testimony is focused on the fact that this bill can be
    significantly enhanced by addressing some significant issues
    with respect to election integrity, and those deal with voter
    fraud. These are things that are not simply matters of recent
    import. They go back throughout our history where we have had
    thousands, perhaps tens of thousands of cases in which, again,
    the dead or others have been registered to vote and people
    voting in their names.
        Senator Cardin. Let me agree with you on the first point
    that you made. I find that despicable, the statements made that
    voting for a particular candidate is equivalent to the
    circumstances you said. That is why I agree completely. I think
    it was Senator Obama or Senator Schumer who said this is not a
    partisan issue. We are going to fight very hard in elections to
    get our vote out, but we should not be fighting to suppress the
    vote or mislead the vote. And that is wrong, and anything that
    we do that tries to mislead the vote in that regard, whether it
    is a Democratic candidate trying to get minority votes away
    from a Republican or a Republican from a Democrat, that is
    wrong.
        We have seen these practices now--it is not isolated. We
    have seen these practices in many States, and the practices
    appear to be growing. I do not know whether your Commission has
    investigated what happened in Maryland in 2006 or what happened
    in Virginia or what happened in California. I hope that you are
    doing that because in each of these cases it was clear that the
    intention of the individuals who were responsible for this
    material was to diminish minority voters. And that is something
    that should have no place in American politics.
        So I am just somewhat interested as to how your Commission
    is looking at this. You have indicated you have done some
    studies, and I would love--I think our Committee would welcome
    the review on the circumstances that have been brought out at
    this hearing. We had this hearing, and there has been now
    significant testimony, and I have not seen any investigations
    by your Commission in regards to those issues. So I would
    welcome your review of that.
        You do mention the 2000 election and at least 2,000 voters
    who cast votes illegally according to the Media Analysis. Is
    that the group that you--
        Mr. Kirsanow. Yes.
        Senator Cardin. Now, has your Commission or any law
    enforcement agency or any academic research borne out these
    numbers?
        Mr. Kirsanow. No law enforcement agency has done so, and
    very often it is difficult to prove the negative. But there
    have been some academic studies with respect to matters such as
    this. If you look at the--
        Senator Cardin. Could you make that available to our
    Committee?
        Mr. Kirsanow. I sure could.
        Senator Cardin. So we could see what basis--
        Mr. Kirsanow. Our civil rights--
        Senator Cardin. You made a pretty strong statement.
        Mr. Kirsanow. Yes.
        Senator Cardin. I could tell you that I heard a similar
    statement made about fraudulent voting in a California
    congressional election when I was a Member of the House, and we
    investigated that in the House committee because the election
    was contested, and it bore out that there were no demonstrated
    fraudulent votes. So I know statements are often made, but we
    like to see the facts behind those statements. So I would
    appreciate it if you could make available to us the specifics
    that would bear out those numbers.
        Mr. Kirsanow. Absolutely, Mr. Chairman. I would just offer
    that, as you know, in Florida in 2000 there was a significant
    problem with respect to purging the voter rolls of felons who
    at that time at least were barred from voting in Florida. And
    when matching the names of those felons to those who vote or at
    least checked off--who were checked off by registrars as
    voting, there was a correlative that showed that individuals
    not entitled to vote were actually voting. And this is not
    something that is unusual.
        Senator Cardin. I will just give you my own observations. I
    have been at polling places a lot in my lifetime. There are
    more eligible voters who were not able to cast votes, even
    though provisional ballots are required, than any documented
    cases that I know of, of people who were ineligible to vote who
    cast their votes.
        So I am all for making sure that people who are eligible to
    vote are only the ones that vote. But I worry about what
    happened in Prince George's County, Maryland, in which the
    county executive I think pretty clearly pointed out that
    hundreds, if not thousands, of voters in that one county were
    denied an opportunity to vote because of the practices in this
    past election. And I would hope that your Commission would take
    a look at that type of activity, because I think it has a much
    stronger impact on the system than the other issues.
        I am going to come back on a second round, but let me
    recognize Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman.
        Let me just ask the panel this question, and any or all of
    you can answer it, as far as I am concerned. This legislation
    proposes to create a new crime for communicating false
    information that has the intent to prevent another person from
    voting in an election. What about communicating false
    information that encourages another person to illegally vote in
    an election? Should that be part of this bill? If I encouraged,
    say, an illegal alien to vote in an upcoming election, knowing
    that this type of activity is illegal, shouldn't that also be a
    crime under this legislation? Now, to me it would not appear to
    be so under this bill.
        I would also like to ask every member of the panel to say
    whether they would support the inclusion of this type of
    illegal activity. We can start over there with you, Mr.
    Shelton.
        Mr. Shelton. Senator Hatch, good afternoon, sir. Let me
    first say that it is already a crime for one who is not a U.S.
    citizen to vote in an election, and certainly if one conspires
    with someone to commit a crime, they are also committing a
    crime. I think this particular piece of legislation needs to
    address those concerns.
        But may I also say on a different note that was raised
    earlier, the NAACP would love the opportunity to submit
    transcripts from hearings that were held in Florida after the
    2000 election that showed a number of things, including every
    African-American male going to certain polling sites actually
    being intimidated away from the polls by being asked if indeed
    they had a felony on their records. That was the outcome of
    many of the problems that were raised by my colleague at the
    other end of the table.
        We would love to provide that kind of information, and
    certainly we would also love to provide information about the
    outcome of the St. Louis election as well in which only on the
    north side of St. Louis, the predominantly African-American
    community, where polling sites opened late and were not allowed
    to stay open late until lawsuits were filed by the NAACP to do
    such.
        So in answer to your first question, I do not think this
    legislation needs to cover an issue that is already covered by
    law, and certainly we look forward to seeing that particular
    law being further enforced. As a matter of fact, as we talked
    about the issue of the crimes that were committed, it is also
    interesting to the NAACP, and I think to others in this room,
    that the Justice Department actually convicted no one of crimes
    of fraud in the election process.
        Senator Hatch. Do you all agree that this is presently
    covered?
        Mr. Trasvina. Senator, I believe that over the years you
    have closed those loopholes. You have closed those loopholes
    about if there is any perception of unauthorized immigrants
    being able to be persuaded to vote. In the 1996 Act on
    immigration, that is already taken care of. I would be
    surprised if that continued to be a problem to the extent it
    even was a problem before. And the Chairman alluded to the 46th
    Congressional District investigations back in the mid-1990s.
        I think Commissioner Kirsanow talks about the problem
    particularly with bilingual voting, and you recall from the
    1992 hearings on the Voting Rights Act extension, and even back
    to 1982, we always hear about bilingual ballots or causing
    undocumented immigrants to vote. And every time somebody comes
    up with a list, they go back and registrars look at the list,
    and they find the problem was not with the voters. The problem
    was with the incomplete and not up-to-date INS records that do
    not show the naturalization date of the person so that the
    person was properly registered, properly voted, and that there
    have not been cases of unauthorized immigrants voting in
    elections. We made it a deportable offense, made it a bar to
    naturalization. Those are the types of things that are already
    in place that mean that this law does not need to be amended
    for that purpose.
        Mr. Briffault. It was my impression that at least since the
    motor-voter law, the National Voter Registration Act of 1993,
    that false voting and false registration are already penalized,
    and I would imagine that conspiracy, which is the situation you
    are describing of somebody encouraging a false voting or false
    registration, would fall within the general penalization of
    false registration and false voting. So I suspect that the
    situation you are describing already violates Federal law.
        Mr. Canfield. I would just like to pick up on something
    that Mr. Shelton said a minute ago about the voters in Florida
    who were being challenged at the polling station and asked
    whether they were felons or not. You know, I do not think
    anybody can countenance that kind of activity. But at the same
    time, I think that there has to be some sort of recognition
    given to the fact that Federal and State law allows certain
    people to vote and bars other people from voting.
        One of the reasons you might be barred from voting in a
    particular State is that you have a felony conviction on your
    record. We do not want to go so far to the extreme that all
    past convictions for felonies are no longer subject or could be
    challenged when a person goes to a voting place. I do not think
    you can single out people in a particular precinct based on
    race or ethnicity, obviously, but it is still a legitimate
    question in a larger context to make sure that felons are not
    voting.
        Mr. Kirsanow. Senator Hatch, I said in my remarks that
    there are two prongs to the problem of deceptive voting
    practices. This bill addresses one of the prongs, and that is,
    preventing the eligible voters--or trying to prevent eligible
    voters from voting. The other prong is getting ineligible
    voters to vote, and there are a number of mechanisms by which
    this happens.
        There is an example, for example, that I have in my written
    testimony of a non-citizen from Barbados who is told that,
    well, if you are in the United States for 7 years, you can
    vote. So she registered. She did not vote, but was later told
    by election officials that somebody had voted in her name.
        Now, it is difficult to know how frequently that happens.
    It usually only happens when someone who is registered says,
    hey, wait a minute, I did not vote; or someone who is not
    registered finds out--this would hardly ever happen--finds out
    that somebody voted in their name or their name was placed on a
    roll illegitimately.
        So there are these mechanisms that occur, and some of these
    are addressed in State statutes, some of it you can look at--as
    Mr. Trasvina indicated, you look would at other statutes that
    are not discrete to this particular bill. But I think the
    intent of this particular bill was to place in one discrete
    bill the issue of deceptive practices. In that regard, the bill
    has certain omissions that I think inclusion of which would
    strengthen the bill.
        Senator Hatch. Thank you all for that.
        Mr. Canfield, your testimony mentions the problems that
    could be encountered under the legislation by providing
    authority to Federal agents to make, you know, in the days
    leading up to the election, instantaneous judgments as to who
    and what types of voter campaign deceptive practices should be
    brought before a grand jury.
        Now, do you worry that this type of grand jury activity
    could presumably negatively affect the very election it is
    trying to protect?
        Mr. Canfield. Well, of course I do, Senator, because, you
    know, the existence of a grand jury's meeting on election law
    problems are not very closely held in this country. It soon
    becomes evident to the press and other people that a grand jury
    is meeting.
        The problem I see is that giving a role, as the legislation
    purports to do, to officers of the Federal Government to draw
    conclusions or make observations in the immediate days before
    an election sends, I think, a bad signal because it empowers
    agents of the Federal Government to draw distinctions in the
    context of an election which in theory should be separate and
    apart from the Federal Government's role at all, I would say.
    And to empower Federal agents to have some sort of role in
    making determinations as to whether certain publications or
    certain announcements are fraudulent or intended to suppress
    the vote tends, I think, in the abstract to give a role to the
    Federal Government that I do not think is appropriate.
        Senator Hatch. Well, another problem with the legislation,
    at least as I view it in your opinion, Mr. Canfield, is the
    definition of ``deceptive practices.'' Given how hard it is for
    people to define what is considered deceptive, I worry about
    these subjective views. Could they lead to a great deal of
    confusion and problems with political campaigns from both
    political parties? And how would you address the definitions
    that are utilized in this bill?
        Mr. Canfield. I pointed out in my testimony that I thought
    that was a problematic area as well. You know, I represented
    the Senate Rules Committee in the contested election in
    Louisiana in 1996 when Mary Landrieu was first elected to the
    Senate. And one of the accusations by her opponent, of course,
    was that there were all kinds of shenanigans going on in
    Louisiana before and during election day. And I remember
    turning to my Democratic colleague and dear, dear friend, Bob
    Bauer, who is at Perkins Coie. Bob said to me, ``Well, you
    know, this probably does not matter and does not amount to
    much.'' And I said to him, ``Bob, this is Louisiana. Whether we
    like it or not, we are going to have to look into this.''
        There are some areas of the country that are prone to
    problems on election day. There are other parts of the country
    which have never had a history of election day problems. So to
    create a national standard is going to be, I think, somewhat
    difficult to enforce across the country. But that is just my
    experience.
        Senator Hatch. Well, you highlight a portion of the bill
    that would provide a private right of action for individuals
    who believe that they themselves were subject of some loosely
    drafted--or loosely defined, I guess, election deceptive
    practice. Now, given that the Civil Rights Division, the U.S.
    Attorney's Office, and the local law enforcement are available
    for complaints from citizens, could this new private right of
    action create, you know, an innumerable number, let's say, of
    Federal cases based upon the whims of individuals?
        Mr. Canfield. If I had to single out one part of the bill
    that ought to be really, really closely examined, I think it is
    the private right to action. I understand the intent of the
    authors, and I think the intent is not a bad one. But I think
    the unintended consequence of creating a private right of
    action will be to cause lawyers to have even more roles in the
    elections than they currently do. I think every Federal
    candidate is going to have to have one or more lawyers with him
    or her at almost all occasions. And I think that the campaign
    managers are going to understand that one of the great
    attributes that they have to take a shot at their opponent is
    to file a private cause of action against some agent or friend
    of their opponent for publishing a scurrilous document like
    this, or whatever, and having the press conference announcing
    the fact that the private right of action is being taken.
        I think it is just the law of unintended consequences, and
    from my experience in the Federal Election Campaign Act realm
    for 30 years, it is by definition the law of unintended
    consequences.
        Senator Hatch. My time is up, Mr. Chairman.
        Senator Cardin. Thank you very much.
        Mr. Briffault, let me bring you into this discussion,
    because I was impressed by your testimony as to how this bill
    has been drafted, particularly in light--I was not aware that
    there were 18 States that have passed laws in this area that,
    according to your testimony, this law, the Federal bill that is
    being suggested is one of the more tightly drawn and focused of
    the bills that are out there.
        If I understand the Obama bill, it only involves
    communications within 60 days of an election. We heard the
    concern of grand juries being out there. My understanding is it
    takes a little bit of time for those types of issues. I think
    the real purpose of this bill is to prevent activities, not to
    prosecute, and that prosecution would take more than 60 days
    under the most expedited process, so that the likelihood of
    these matters reaching the courts would be well after the
    elections themselves. That is not the main purpose of the bill.
    The purpose of the bill is to put people on record as to what
    we are trying to achieve.
        So let me try to get your view as to how this is drafted
    relative to the other bills that you have seen around the
    Nation and whether we are on safe ground in the way that we
    have dealt with it.
        Mr. Briffault. Sure. Thank you, Senator. I think it is
    considerably tighter in two ways. One is in the requirement of
    an intentional falsehood intended to affect an election. Many
    of the State laws are drafted somewhat more broadly and pick up
    falsehoods or negligent or reckless falsehoods and do not
    always have the specific addition of an intent to influence an
    election. So to begin with, it is really more tightly focused
    on intentional falsehood.
        My second point relates to Mr. Canfield's reference a few
    minutes ago about the breadth of the idea of deceptive.
    Although the bill is titled ``deceptive,'' it actually only
    targets three very specifically defined types of actions, and
    that I think is also unusual. Instead of a general prohibition
    of false, deceptive, or misleading statements, which is the
    kind of language you see in some of the State laws, it targets
    these three specific types of factual misstatements: the time,
    place, and manner of the election. Is the election going to be
    on Tuesday or on Wednesday? Is it on November 2nd or November
    3rd, which is an area where it is easy to get the facts right.
    If you can prove that such a statement is intentionally--it is
    also easy to make it an error, so you can prove that it is
    intentionally wrong--the only effect of that kind of
    intentional falsehood is to confuse people. False statement
    concerning eligibility to vote, the kinds that were mentioned
    earlier, you cannot vote if you have not paid your parking
    tickets, which, again, if that is knowingly false and that can
    be proven on the part of the speaker, again, the only effect of
    that is to induce people who have the right to vote not to
    vote. As for false statements concerning endorsements, the only
    effect of that is to persuade people to vote against their
    preferences, to mislead the voters.
        None of this really addresses statements about issues or
    hyperbole, nasty comments, exaggerations of a candidate's
    record or anything like that, which would be obviously far more
    problematic and probably un constitutional to try and regulate
    statements like that.
        Senator Cardin. I thank you.
        Mr. Shelton and Mr. Trasvina, let me try to get your
    response to the need for Federal legislation. One of the
    reasons that this bill has been--we are trying to move it is
    the view from Justice that they do not have the authority
    currently to go after these practices. Senator Schumer
    contacted the Justice Department, as he testified, after the
    2006 elections, and the Attorney General responded and even
    before our Committee responded that he did not believe that he
    had the legal authority to look into these types of issues
    because there is no Federal law that makes these practices
    illegal.
        Now, there are some State laws, I am finding out, so I
    would just like to find out from you how important you believe
    it is to have Federal law enforcement in order to try to combat
    these types of practices.
        Mr. Shelton. Why don't I begin by saying that the most
    important provisions in this bill from the NAACP's standpoint
    is the preventative provisions; that is, indeed what the bill
    does is engage the Federal Government to utilize, for instance,
    its CRS division to be able to provide the correct information
    to the local constituencies so that they can actually know when
    the elections are being held and they will not lose the
    opportunity to cast that vote. They will not indeed be
    disenfranchised.
        Indeed, that is an extremely important provision in this
    bill that will help make sure that after the fact, too often as
    we see when there is fraud in an election, the votes are lost,
    the decisions are made, and, quite frankly, the candidate that
    a majority of those living in that particular precinct, State,
    or otherwise is not the person that wins the election.
        So, indeed, engaging the Federal Government, giving the
    Federal Government the authority to actually utilize the local
    media, to utilize other entities to be able to get the
    information out so that people indeed can cast that vote in due
    time.
        Mr. Trasvina. And I would just add that having the Federal
    Government involved in this gives it the outside independence
    that is particularly important on these issues, and with
    candidates who are often involved in local parties, have it one
    step removed from the State. The Federal Government is the
    appropriate place for this authority to be rested.
        Senator Cardin. Historically, of course, it has been the
    Federal actions that have brought about the greatest
    advancements as far as removing barriers.
        Senator Hatch?
        Senator Hatch. Let me just ask the panel--I have been
    sitting here thinking. In the 2000 Presidential elections, news
    organizations erroneously announced that the polls in Florida
    had closed and that Gore had won at that particular point.
    Couldn't this proposed legislation be used to prosecute members
    of these news organizations? Or could it? I would at least like
    to have your viewpoint on it. We will start with you, Mr.
    Shelton.
        Mr. Shelton. If it can be proven that it was intentional
    to--
        Senator Hatch. You think that is what the pivotal question
    would be. Do you agree, Mr. Trasvina?
        Mr. Trasvina. I do not believe that this legislation would
    cover that type of situation.
        Senator Hatch. OK. Mr. Briffault?
        Mr. Briffault. If the reporter knew that the polls were
    open and said they were closed and did that in order to
    persuade people not to vote when they were still eligible to
    vote, then I could it might fall within this. I would have to
    think about whether there is a broader press exemption. But I
    think in a situation of a reporter abusing a reporter's
    position to intentionally disseminate false information with
    the intention of getting people not to vote, that could fall
    within this.
        Senator Hatch. Well, we have never seen that around here,
    of course.
        Mr. Canfield?
        Mr. Canfield. Senator Hatch, I would just say that your
    question, I think, points out one shortcoming, and that is,
    there are many ways of getting out false and disseminating
    false information in a campaign setting that can never be
    attributed to anybody in the campaign itself. More often than
    not, in my experience, the problems that occur at the local
    grassroots precinct level are caused by people acting at that
    level not in connection with some higher authority at the State
    party or the Federal national party committees or that kind of
    thing.
        State and Federal elections tend to be very result
    oriented, and if you are a local campaign operative or
    supporter of a candidate, you may not have a position in the
    campaign, but if you are sufficiently motivated to support that
    candidate, you will in some instances do whatever you think is
    necessary to achieve that end.
        That is what strikes me about so much of this anecdotal
    information that we see here. With the exception of the one
    that was allegedly attributed to the gubernatorial and
    senatorial Republican candidates in Maryland, the rest of this
    looks like it is done by somebody in their basement. It does
    not look very professional. It does not look like a campaign
    would put it out.
        So what I think is you have in most instances where stuff
    like this comes across the transom, you have people who are
    operating independently of anybody, whose intentions are to
    help or hurt one party, but are not acting in concert or as an
    agent of that party.
        Senator Hatch. OK. Mr. Kirsanow?
        Mr. Kirsanow. Senator, Section 3(b)(1)(A)(ii) talks about
    intent and the information that is conveyed in terms of time
    and place of the election. I agree with Professor Briffault
    that if there was some showing of intent on the part of the
    media agencies, it could possibly fall within that.
        In my day job on the National Labor Relations Board, we
    conduct elections. Now, electing Senators may not be as
    important as electing a union, but, nonetheless, we have got
    all kinds of manners of structures to protect that right to
    vote. And one of the things we are concerned about is having a
    buffer during the election campaign that recognizes that even
    if, you know, it may be unlawful, we have got to be very
    careful to make sure that that buffer does not somehow intrude
    upon legitimate speech. You have got to be very careful in
    taking a scalpel in how you carve out what is prohibited
    speech.
        Now, I do not think that there is--I am not a First
    Amendment scholar, so I will not address the First Amendment
    concerns at all. And I think these kinds of acts are despicable
    and need to be addressed. But, nonetheless, I think it would
    probably be a fairly high hurdle to show that media is
    intentionally trying to defraud or mislead voters. In
    Tallahassee and the Panhandle of Florida, there were
    allegations that came to our attention that there were hundreds
    of people who were in line ready to vote, and then there was a
    report that, in fact, you know, one of the candidates had, in
    fact, won. And a lot of people went home, and it turned out to
    be that that was false. Then there were reports that certain
    polling stations were closed and people go home. Mr. Shelton
    talked about that in St. Louis, and that occurs in a lot of
    areas.
        The question is: Can you show intent? The question is: How
    broadly is intent defined?
        Senator Hatch. Thank you.
        Professor Briffault, we are honored to have all of you
    here, and I have enjoyed your testimony, but in his testimony,
    Mr. Johnson testified or cited several examples of ``false and
    deceptive'' practices that he believes should be prohibited and
    criminalized by this legislation.
        Now, one of the examples, as I understand it, that Mr.
    Johnson provided was a political sign saying, ``We are not
    slaves to the Democrats.'' Do you agree with Mr. Johnson's
    assessment that these signs were ``false and deceptive'' and
    were a ``deliberate effort to confuse, to mislead, and to
    suppress African-American votes''? And, furthermore, would
    these signs fall into the purview of this legislation? And the
    last question would be: Where do you draw the line?
        Mr. Briffault. Those statements would not fall within this
    legislation. They do not deal with any of the three specific
    things this legislation addresses--time, place, and manner,
    qualifications to vote, or false statement of endorsements.
        More generally, no, I would not consider them to be the
    kinds of ``false statements'' that you could regulate. They are
    hyperbole. They are the kinds of strong statements that are,
    you know, the heart of politics. I mean, like it or not, these
    things are the kinds of strong, exaggerated, often negative
    statements, the harsh rhetoric that have been part of American
    politics since the founding. And these kinds of statements
    would not be picked up by this bill. They should be challenged
    by people on the other side. They should be decried for the
    kinds of images that they use, but the response to these kinds
    of statements is more counter statements. I do not think they--
    I believe they are not regulated by this bill. I do not believe
    they could be regulated by any bill constitutionally, and I
    think that is the right result.
        I think the kind of line that has been drawn is the line
    that the Supreme Court has drawn, which is about statements of
    fact and things which will be perceived as statements of fact.
    I think in a situation like that, no one would believe that
    anyone was being treated as a slave in a literal sense. It is
    being used in a metaphoric sense, and I think that is the way
    any person seeing the billboard would react to it.
        Senator Hatch. Mr. Canfield, do you agree with that?
        Mr. Canfield. Mr. Chairman, I would give you an example of
    the kind of problem that is addressed in the legislation, the
    false endorsement right up before the general election. In my
    experience, there is a mechanism currently in Federal law to
    deal with a situation like that, and I give you as an example
    the campaign of Congresswoman Ellen Tauscher a few years ago in
    California, I would say now about 8 or 10 years ago. I think it
    was her first term. She ran against a Republican, and during
    the heart of the campaign, within probably a month of the
    general election, a flier went out to all of the registered
    Democrats in her district. It was allegedly signed by George
    Miller of California, I think the dean of the California House
    delegation--obviously, it was not his signature, but it was a
    facsimile of his signature--saying that Ellen Tauscher was
    wrong on several fronts. She had voted with the Bush
    administration on certain legislation and was not supported by
    rank-and-file Democrats.
        It caused a big stir in that district. It was never proven
    where the source of the flier came from. It was never proven
    that it came from her Republican opponent. But a Federal grand
    jury in Washington met on that allegation. The Federal Election
    Commission got a whole of it first because there was a
    complaint by the Tauscher campaign against her opponent. After
    the Federal Election Commission was involved, there was a
    Federal grand jury seated in Washington, and I had a client who
    testified before that grand jury.
        So to say that the Federal Government or the Justice
    Department does not regularly oversee or prosecute in this area
    is not correct. They did in that instance. They got a criminal
    conviction, the Justice Department, in that instance.
        Senator Hatch. Thank you, Mr. Chairman.
        Senator Cardin. Mr. Canfield, I should have taken you to
    the Justice Department when I met with them to see whether they
    would pursue the Maryland circumstances, because they told me
    they had no authority to do it. We had some discussions about
    that.
        I would just point, again, I agree with Senator Hatch. I
    thank all of you for your testimony. I found this panel to be
    extremely helpful. We know we are dealing with tough subjects.
    Whenever you are dealing with First Amendment issues, you have
    a difficult issue to deal with, and election laws make it even
    more complicated. I do not mean to minimize that, but I would
    just make an observation. I was not on this Committee when the
    Voting Rights Act was passed in the 1960's, but I imagine some
    of the points that were made that these are just local issues
    and they are isolated and they are not really part of a pattern
    of a political party were made back then. And the Congress did
    right when they passed the Voting Rights Act and made it clear
    that we would not tolerate as a Nation practices that try to
    infringe upon the rights of individuals to vote.
        Mr. Canfield, I would just point out that I think this is
    somewhat evolutionary. Yes, the fliers that I first saw, I had
    no idea who put them out. They were hard to figure out who was
    identifying these fliers. But then we saw in California and
    Virginia and Maryland organized efforts. These were not
    individual independent operators. These were sophisticated
    operations using targeted lists, using robo-calls, and in
    Maryland using literature under the authority of the Governor
    and candidate for U.S. Senate.
        So this was not something that was without a great deal of
    thought, and unless we clarify this situation, I expect that
    you will see bolder actions and the acceptability that it is
    fair game to win an election to try to suppress vote.
        Now, the fact that they do it the night before the election
    tells you just how proud they are of the tactics they are
    using, and I think you will see a lot of that continue to
    happen.
        This bill is very narrowly drawn. When Mr. Johnson was
    testifying about the slavery posters, I pointed out that that
    would not be affected by this bill. As despicable as those
    ballots were, this bill is not aimed at that, nor should it be
    aimed at that. There is a lot of information put out in
    campaigns I have been involved with against me that were
    absolutely wrong. But that is part of the political process,
    and people put spins on different things, and I have got to be
    prepared to respond to it. And I am prepared to respond to it,
    even if it comes at the 11th hour.
        But what I should not have been to be dealing with and no
    candidate should be subjected to is tactics used to suppress
    minority vote. And this bill, I think, is very narrowly drawn.
    I would argue that perhaps we should consider broadening it,
    but I think we have the right support group now, and I hope
    that we can move it the way it has been negotiated.
        But I would just urge all of you to take a look at this,
    look at what we are trying to achieve and send a clear message
    of what we think is right and wrong in the election process,
    and to look at the purpose of this legislation. I am pleased
    that the House committee has already acted on it. I was talking
    to Congressman Hoyer earlier, and I am hopeful that the House
    will act on this bill. And I hope that our Committee and the
    Senate will act on this legislation. I think it is an important
    issue. I do not know of anything that is more important than
    making sure that our elections are fair, open, and available to
    all of our eligible voters and we try to get the highest
    possible participation. That is not a partisan issue and one in
    which Democrats and Republicans need to come together on and
    the Federal Government needs to play a critical role in that.
        The record will be held open for 1 week for written
    testimony from other groups that wish to submit it. Again, I
    thank all of you for participating, and the Committee will
    stand in recess.
        [Whereupon, at 4 p.m., the Committee was adjourned.]
        [Submissions for the record follow.]

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