[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
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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
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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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