    [Senate Hearing 112-893]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 112-893

       PROHIBITING THE USE OF DECEPTIVE PRACTICES AND VOTER INTIMIDATION
                     TACTICS IN FEDERAL ELECTIONS: S. 1994

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED TWELFTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 JUNE 26, 2012

                                   __________

                              Serial No. J-112-84

                                   __________

             Printed for the use of the Committee on the Judiciary

                                   ----------

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    CHUCK SCHUMER, New York              JON KYL, Arizona
    DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
    CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
    RICHARD BLUMENTHAL, Connecticut
                Bruce A. Cohen, Chief Counsel and Staff Director
            Kolan Davis, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................    28
    Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
    Schumer, Hon. Charles E., a U.S. Senator from the State of New
      York, prepared statement.......................................    30
    Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama,
      prepared statement.............................................    32

                                   WITNESSES

    Witness List.....................................................    27
    Cardin, Hon. Benjamin L., a U.S. Senator from the State of
      Maryland.......................................................     5
        prepared statement...........................................    42
    House, Tanya Clay, Director of Public Policy, Lawyers' Committee
      for Civil Rights Under Law, Washington, DC.....................     8
        prepared statement...........................................    50
    Park, John J., Jr., of Counsel, Strickland Brockington Lewis LLP,
      Atlanta, Georgia...............................................    10
        prepared statement...........................................    66
    Flanagan, Jenny, Director of Voting and Elections, Common Cause,
      Washington, DC.................................................    12
        prepared statement...........................................    69

                                   QUESTIONS

    Questions submitted by Senator Leahy for Jenny Flanagan..........    75
    Questions submitted by Senator Grassley for Tanya Clay House.....    76
    Questions submitted by Senator Grassley for John J. Park, Jr.....    82
    Questions submitted by Senator Grassley for Jenny Flanagan.......    85

                             QUESTIONS AND ANSWERS

    Responses of Tanya Clay House to questions submitted by Senator
      Grassley.......................................................    95
    Responses of John J. Park, Jr. to questions submitted by Senator
      Grassley.......................................................   111
    Responses of Jenny Flanagan to questions submitted by Senators
      Leahy and Grassley.............................................   119

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Brennan Center for Justice, New York University School of Law,
      New York, New York, statement..................................   138
    Demos Ideas & Action, Brenda Wright, Vice President, Legal
      Strategies, Washington, DC, June 25, 2012, letter..............   140
    Electronic Privacy Information Center (EPIC), Lillie Coney,
      Associate Director, Washington, DC, statement..................   142
    Executive Summary from Deceptive Practices, June 2012 Report.....   146
    Henderson, Wade, President & CEO, Leadership Conference on Civil
      and Human Rights, statement....................................   148
    National Bar Association, Daryl D. Parks, President, Tallahassee,
      Florida, statement.............................................   151
    National Congress of American Indians (NCAI), Washington, DC,
      statement......................................................   156
    National Urban League, Marc H. Morial, President and CEO, New
      York, New York, statement......................................   158
    New York Times, ``In 5-Year Effort, Scant Evidence of Voter
      Fraud'', April 12, 2007, article...............................   162
    Project Vote, Washington, DC, statement and attachments..........   168
    Shelton, Hilary O., Director, NAACP, Washington, DC, statement...   172
    U.S. Department of Justice, Judith C. Appelbaum, Acting Assistant
      Attorney General, July 2, 2012, letter.........................   175

                     ADDITIONAL SUBMISSIONS FOR THE RECORD

    Submissions for the record not printed due to voluminous nature,
      previously printed by an agency of the Federal Government or
      other criteria determined by the Committee:

      Deceptive Practices 2.0: Legal and Policy Responses--issued by
        Common Cause, The Lawyers' Committee for Civil Rights Under
        Law, and The Century Foundation:

          http://www.commoncause.org/research-reports/
            National_102008_Report_Deceptive_Practices_2-0.pdf

      Deceptive Election Practices and Voter Intimidation--The Need
        for Voter Protection--issued by Common Cause and The Lawyers'
        Committee for Civil Rights Under Law, July 2012:

          http://www.commoncause.org/research-reports/
            National_070612_Deceptive_Practices_and_Voter_Intimidation
              .pdf

       PROHIBITING THE USE OF DECEPTIVE PRACTICES AND VOTER INTIMIDATION
                     TACTICS IN FEDERAL ELECTIONS: S. 1994

                                  ----------

                             TUESDAY, JUNE 26, 2012

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:06 a.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy, Schumer, Whitehouse, Coons,
    Grassley, and Lee.

    OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
                          THE STATE OF VERMONT

        Chairman Leahy. Thank you all for being here. We are
    holding a hearing to consider the Deceptive Practices and Voter
    Intimidation Prevention Act of 2011. It is intended to protect
    one of the most fundamental rights Americans enjoy: the right
    to vote. In December, I joined Senators Schumer, Cardin,
    Whitehouse, and others to introduce the bill. Actually, in
    2007, I joined on similar legislation by then-Senator Barack
    Obama.
        The legislation has the support of the Justice Department.
    The Attorney General has identified it as one of three areas
    ``crucial in driving progress'' to protect all Americans and
    their right to vote. I think we have to be doing all we can to
    protect people's access to the ballot box.
        The right to vote and to have your vote count is a
    foundational right, like our First Amendment rights, because it
    secures the effectiveness of other protections. Also, you have
    to be assured that everybody has the right to vote to give
    legitimacy of our Government. Attempts to deny Americans access
    to voting undermine our democracy.
        I am fortunate to be from a State like Vermont where most
    places you vote are very small areas, and everybody knows
    everybody. We never had any indication of a suppression of
    voters. But that does not happen everywhere.
        Protecting access for people is ever more important in the
    aftermath of the Citizens United decision by the Supreme Court,
    but we now know that as a result of the fact that corporations
    rather than individuals are wielding more and more influence
    over our electoral processes. In fact, just yesterday, without
    even a hearing, the Supreme Court doubled down on Citizens
    United by summarily striking down a 100-year-old Montana State
    law barring corporate contributions to political campaigns,
    even though the record was very complete that the reason the
    law had been passed was because of the corrupting influence and
    the--actually, the corruption that occurred in Montana because
    of those same corporate contributions.
        I think that those on the Court who opened the floodgates
    to unlimited and unaccountable corporate spending on federal
    political campaigns have now taken another step to break down
    public safeguards against corporate money drowning out the
    voices of hard-working Americans. I am not one who thinks of
    corporations as being persons in that regard. If they were, we
    could say just because we elected General Eisenhower as
    President, why can't we elect General Electric as President?
    Unfortunately, the way this is going, that may not be too far-
    fetched.
        Like Montana, Vermont is a small State, and we take our
    civic duties seriously and cherish our vital role in the
    democratic process. And I think the wave of corporate money we
    are seeing being spent around the country is a matter of
    concern, certainly in my State, and I think the Court dealt
    another severe blow to the rights of Vermonters and all
    Americans to be heard in public discourse and elections.
        Our country has come a long way in expanding and enshrining
    the right to vote, and I worry that we forget our history when
    we never should. We should never forget the significant areas
    we have overcome as a Nation. Pictures of Americans beaten by
    mobs, attacked by dogs, and blasted by water hoses for trying
    to register to vote are seared into our national consciousness.
    We even have a Member of the House of Representatives who
    nearly died when he tried to vote during that time. He was
    saved at the last minute by having his skull crushed by the
    clubs of the police officers.
        We remember a time when discriminatory practices such as
    poll taxes, literacy tests, and grandfather clauses were
    commonplace. But brave Americans struggled long and hard to get
    rid of that, and some did pay with their lives for their right
    to vote. I do not want to see this country backtrack on hard-
    won progress.
        Recently, rather than increasing access, we have seen
    restrictive voting laws. The recent action to purge Florida's
    voter rolls of legal voters is but one example. Burdensome
    identification laws are others. According to the National
    Conference of State Legislatures, since 2001 nearly 1,000 voter
    ID bills have been introduced in 46 States. Only three States
    do not have a voter ID law and did not consider voter ID
    legislation last year. One of those States is my own State of
    Vermont. But we are seeing laws that make it significantly
    harder for millions of eligible voters to cast ballots. I am
    not talking about people who would have been ineligible
    otherwise, but eligible voters, millions of them, are finding
    it harder to cast ballots. These include young voters, African
    Americans, those earning $35,000 per year or less, and the
    elderly.
        I will put all my statement in the record, but I remember
    the recall election in Wisconsin when voters got a robocall
    telling them, ``If you signed the recall petition, your job is
    done and you do not need to vote on Tuesday.'' In the 2010
    midterm elections, a robocall went out to over 110,000
    Democratic voters in Maryland before the polls had closed
    stating that Democratic Governor Martin O'Malley and President
    Obama had been successful and that there was no need to vote.
    No need to vote. It said, ``Our goals have been met. The polls
    were correct. . . . We are okay. Relax. Everything is fine. The
    only thing left is to watch on TV tonight.'' I mean, this is
    Orwellian in the evilness, and it is evil as well as illegal.
        President Obama was not on the ballot that year, and
    falsely telling voters to stay home could have cost Governor
    O'Malley and the people of Maryland if the election had been
    close. In 2010, in African American neighborhoods in Houston,
    Texas, a group circulated flyers stating that voting for one
    Democratic candidate would count as a vote for the whole
    ticket.
        So I think the need for the Deceptive Practices and Voter
    Intimidation Prevention Act is documented, it is real. The bill
    would prohibit any person from purposely misleading voters
    regardless of qualifications or restrictions.
        The bill offers new ways to enforce these prohibitions, and
    it provides a tool for effective oversight by requiring the
    Attorney General to report to Congress on allegations of the
    dissemination of false information within 180 days of an
    election.
        And I might note that the first witness will be Senator
    Benjamin Cardin. Senator Cardin, we found gripping the stories
    you told of what happened in Maryland. These are the things we
    read about in our history books, but to see it in a recent
    time, it is evil and wrong.
        I yield to Senator Grassley and then to Senator Cardin, and
    I will put my full statement in the record.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]

    STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
                                OF IOWA

        Senator Grassley. Mr. Chairman, to paraphrase Justice
    Scalia, frequently a bill raises a First Amendment issue
    ``clad, so to speak, in sheep's clothing.'' The potential harm
    is understood only after careful study, and then to quote
    again, ``But this wolf comes as a wolf.''
        This bill represents a frontal attack on First Amendment
    freedom of speech. The bill before us today was originally
    proposed by then-Senator Obama. At the 2007 hearing on this
    bill, a Maryland county executive complained about campaign
    literature and statements that were made supposedly by his
    opponent. In supporting this bill, he testified that he was
    ``offended and outraged'' that his opponent had displayed signs
    with what he terms the false statement, ``We are not slaves to
    Democrats.'' That statement is core political speech, fully
    protected by the First Amendment, no matter how much it might
    offend and outrage politicians.
        Unfortunately, that witness is unable to appear before us
    today as he is now serving a lengthy sentence in federal prison
    for engaging in extortion and conspiracy.
        President Obama has inaccurately attacked the Supreme Court
    rulings that protect core political speech, and now we hear
    that the same majority that claims to reverse the Constitution
    plans a hearing this summer on a constitutional amendment that
    would repeal part of the First Amendment protection of
    political speech, and this should deeply trouble all Americans.
        The bill's unconstitutionality goes beyond this
    criminalizing of what one of today's witnesses refers to as
    ``arguably fraudulent information.'' Its structural unsoundness
    would create not a chilling effect but a freezing effect. How
    can anyone know in advance what is ``arguably fraudulent'' ?
    That effect is there even if the Public Integrity Section of
    the Justice Department cannot obtain any convictions.
        Proponents of this bill seem not to understand the dangers
    of having the Justice Department inject itself at the behest of
    politicians into prosecuting other politicians. Again quoting
    Justice Scalia from his same opinion, ``Nothing is so
    politically effective as the ability to charge that one's
    opponent and his associates are in all probability crooks, and
    nothing so effectively gives an appearance of validity to such
    charges as a Justice Department investigation and, even better,
    prosecution.''
        Even worse are the bill's provisions for private right of
    action. The bill's proponent erroneously believe that private
    suits can only be shields and never swords. No intermediary is
    necessary to file a civil suit against a political opponent on
    the eve of an election. Those claims will force your opponent
    to spend money on lawyers rather than against you. The press
    will report the claim of dirty tricks on the eve of an
    election. The victim will be unable to respond effectively to
    refute claims. Once again, the forces pushing for self-
    censorship would be enormous.
        No one condones the violation of criminal law, and although
    one would not know it from the bill's supporters, the kinds of
    activities that occurred in Maryland and elsewhere that are on
    the bill's findings are already prohibited by federal law. That
    is the conclusion of the Justice Department manual for criminal
    election prosecutions. Those who set up robocalls that jam
    phone banks were prosecuted. Maryland successfully prosecuted
    the makers of the ``Relax, the election is won'' calls.
        Existing federal law is violated by prohibiting false
    information on dates of election or polling place locations or
    false claims of eligibility to vote among other practices that
    witnesses rightfully decry. The constitutionality of
    prohibiting various claims of endorsement will have to wait
    until the Supreme Court's decision in Alvarez is handed down,
    hopefully Thursday.
        This bill is also notable for what it omits. Voter dilution
    through allowing ineligible voters to vote is a serious
    constitutional violation. None of the proponents of this bill
    want to do anything about that. The Obama administration first
    denied Florida access to its database of illegal aliens for 9
    months and then sued the State for trying to remove ineligible
    voters supposedly too close to the election. Florida and other
    States should be able to use the database to remove ineligible
    voters after the election and to prosecute those who voted
    illegally.
        If we want to go after deceptive statements in federal
    elections and existing law is insufficient, why doesn't this
    bill criminalize voting by people here illegally or use the
    voter database to make sure that voter registration rolls do
    not contain such people who are here illegally? And why doesn't
    this bill criminalize intentionally deceptive statements made
    by candidates themselves, such as whether or not they are
    Native Americans or whether they served in the military when
    they did not? This bill is a potential Pandora's box that
    threatens First Amendment rights.
        Thank you.
        Chairman Leahy. Well, Senator Cardin, you have seen
    firsthand what happens when we do not have the ability to stop
    these things, and I would note that you have had a great deal
    of experience both in the Maryland Legislature but also in the
    U.S. Senate and as a former member and valued member of this
    Committee. We are delighted to have you here. Please go ahead.
        Senator Grassley. Before he speaks, can I have a statement
    by Senator Sessions included in the record?
        Chairman Leahy. We will keep the record open until the end
    of the day for any statements by any Senators.
        [The prepared statement of Senator Sessions appears as a
    submission for the record.]

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

        Senator Cardin. Chairman Leahy, thank you very much,
    Senator Grassley, Senator Klobuchar. It is a pleasure to return
    to the Judiciary Committee.
        Senator Leahy, I want to thank you and your Committee for
    its leadership on these issues, Senator Durbin and the
    Constitution Subcommittee holding hearings on what is happening
    in our States that are disenfranchising voters, and your
    continued leadership. Senator Grassley, I look forward to
    working with you. It looks like I have a little bit more work
    to do, but we are going to continue to try to find ways that we
    can advance the ability of all Americans to be able to cast
    their votes who are eligible to vote.
        As the Chairman pointed out, this legislation has been
    previously heard by the Judiciary Committee in 2007, and I was
    proud to be a cosponsor with Senator Obama at that time and
    Senator Schumer. The bill was reported out of the Judiciary
    Committee, and a similar bill was passed in the U.S. House of
    Representatives by a voice vote.
        Let me just give a little bit of the history here. It has
    been nearly a century and a half 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
    any State on account of race or color.'' The amendment also
    gives Congress the power to enforce the Article 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
    Americans 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. And in 1965, Congress finally enacted the Voting Rights
    Act, which once and for all was supposed to prohibit
    discrimination against voters on the basis of race or color.
        It is time for Congress to once again take action to stop
    the latest reprehensible tactics that are being used against
    African Americans, Latinos, and other minorities to interfere
    with their right to vote or their right to vote for the
    candidate of their choice as protected by the Constitution and
    in the civil rights statutes. These tactics undermine and erode
    our very democracy and threaten the very integrity of our
    electoral system.
        Mr. Chairman, our 2007 hearing record contains numerous
    examples of deceptive practices, so I will not repeat them in
    detail today. Suffice it to say the hearing record contained
    numerous examples, including listing the wrong day for the
    election, intentionally aimed at minority communities so that
    they would not show up to vote; telling Republicans to vote on
    Tuesday and Democrats to vote on Wednesday; warning recent
    immigrants not to vote due to the possibility of deportation;
    warning voters with unpaid parking tickets not to vote or face
    prison terms or loss of custody of their children. And as the
    Chairman pointed out, in my own election in 2006, I woke up on
    the morning of the election to see a piece of literature put
    out by my opponent who claimed to be the Democrat and endorsed
    by prominent African Americans who had endorsed me in an effort
    to confuse the African American vote.
        Mr. Chairman, this is not freedom of speech. These are
    deceptive practices that have no place in our election system.
    We know elections are rough businesses, but there need to be
    limits, and it is important for Congress to point it out.
        I want to bring to your attention deceptive practices that
    have happened since the last hearing. In 2008, Ohio residents
    reported receiving misleading automated calls giving voters
    incorrect information about the location of their polling
    place. In the same year, flyers were distributed, predominantly
    in African American neighborhoods in Philadelphia, falsely
    warning that people with outstanding warrants or unpaid parking
    tickets could be arrested if they showed up at polls on
    election day. In the same year, messages were sent to users of
    the social media website, Facebook, falsely stating that the
    election had been postponed a day.
        Students at some universities, including Florida State
    University, received a text message also saying the election
    had been postponed for the day. In the same year, a local
    registrar of elections in Montgomery County, Virginia, issued
    two releases incorrectly warning that students at Virginia Tech
    who registered to vote at their college could no longer be
    claimed as dependents on their parents' tax returns or could
    lose scholarships or coverage under their parents' car or
    health insurance.
        In the 2010 elections, in African American neighborhoods in
    Houston, Texas, a group called Black Democratic Trust of Texas
    distributed flyers falsely warning that a straight ticket vote
    for the Democratic Party would not count and that a vote just
    for a single Democratic candidate would count for the entire
    Democratic ticket. And as you pointed out, the 2010 elections
    in Maryland where the robocalls were made by the Republican
    candidate, but not identified that way, saying this was a call
    from the Democratic candidate for Governor and from Barack
    Obama, there was no need to vote because the election already
    had been won.
        Senator Grassley, you are correct, that person was
    prosecuted under State law, not under federal law, prosecuted
    and a conviction was had. We want to make sure that in federal
    elections we have the protection that these types of
    fraudulent, deceptive communications will not be tolerated.
    This legislation is carefully drafted to comply with the First
    Amendment of the Constitution. It is carefully timed as to when
    the communications occur and the types of communications, and
    it gives the Department of Justice the tools they need to
    ensure the integrity of our election process and to make it
    clear that we will not tolerate that type of communication in a
    federal election which is aimed at disenfranchising minority
    voters.
        We thought those days were over, but they are not, and it
    is important for Congress to act to give the tools the
    Department of Justice they need.
        I am proud that Attorney General Holder supports this
    legislation. He believes it is needed as a tool so that they
    can do their jobs on behalf of the American people, and I would
    urge the Committee to favorably consider this legislation once
    again.
        Chairman Leahy. Would you agree with me that simply putting
    up a First Amendment argument is not enough? If you could have
    deceptive--if deceptive statements were protected by the First
    Amendment, then somebody selling, for example, prescription
    drugs that had been proven to be totally unsafe could say,
    well, this has been certified as being very safe for your heart
    condition, for example, and if somebody then dies from it, they
    would say, well, we have a First Amendment right to say that.
    Is that too absurd an example?
        Senator Cardin. The Chairman is absolutely right. The
    Supreme Court has said on numerous occasions that none of the
    rights in the Bill of Rights are absolute, that they are all
    subject to reasonable interpretation since we know that there
    is speech that is not protected under the First Amendment.
        Chairman Leahy. Thank you. Thank you very much, Senator
    Cardin. I appreciate your being here. We still miss you on this
    Committee, but I am proud of your work on the other committees
    you are on.
        Senator Cardin. I would ask that my entire statement be
    made part of the record.
        Chairman Leahy. Of course, it will be made part of the
    record.
        Senator Cardin. Thank you.
        [The prepared statement of Senator Cardin appears as a
    submission for the record.]
        Chairman Leahy. As I have noted, statements by any Senators
    who wish to be added will be made part of the record. Thank
    you.
        Senator Grassley. Thank you, Senator Cardin.
        Chairman Leahy. I would like to ask Tanya House, John Park,
    and Jenny Flanagan to please come forward and take their seats.
    I do not know if those name plates have the same name on the
    back, but I think you are all in the right place.
        I am going to ask each of you to give your statements. Your
    full statements will be made part of the record. I apologize
    for the voice. The allergies or whatever is in the air in
    Washington do not agree with me quite as much as in Vermont,
    and I seem to be reactive to the pollens. But nobody could
    complain about what a beautiful day it is.
        Ms. House is the director of the Public Policy Department
    at the Lawyers' Committee for Civil Rights Under Law, where she
    focuses on a variety of voting rights and social justice
    issues. She received her law degree from the University of
    Texas Law School.
        Ms. House, it is good to have you here. Please go ahead.

       STATEMENT OF TANYA CLAY HOUSE, DIRECTOR OF PUBLIC POLICY,
     LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, WASHINGTON, DC

        Ms. House. Thank you. Mr. Chairman, Ranking Member
    Grassley, and everyone here today, thank you so much for
    allowing us to be here to talk about protecting the voting
    rights of all Americans. My name is Tanya Clay House. I am the
    director of public policy at the Lawyers' Committee for Civil
    Rights Under Law. The Lawyers' Committee is actively engaged in
    enforcing the right to vote and ensuring the integrity of our
    elections through litigation and policy advocacy, and we
    strongly support the Deceptive Practices and Voter Intimidation
    Prevention Act of 2011, and we want to thank particularly
    Senator Leahy as well as Senators Schumer and Cardin for
    reintroducing this bill that we have consistently supported
    since its inception in 2005.
        In the limited time I have, I want to focus primarily on
    why current federal and State laws are insufficient, also the
    particular importance of the corrective action provisions in
    Senate Bill 1994, as well as how this bill addresses actual and
    documented fraud against voters. During the questions and
    answers, I am happy to respond to any questions regarding the
    First Amendment protections.
        As previously stated by Senator Cardin, deceptive practices
    intentionally disseminate false and misleading information with
    the express purpose of influencing the outcome of elections. As
    technology becomes increasingly sophisticated, deceptive
    practices reach wider audiences, including taking the form of
    such things as flyers, robocalls, as well as text messages and
    even through the Internet.
        I want to showcase here--examples of a couple of flyers--
    some of which have already been mentioned by Senator Cardin,
    one in particular here in Texas. This does speak to the
    challenges that are faced particularly in certain communities,
    telling people when to vote, telling them the wrong information
    about voting on a Republican ticket versus a Democratic ticket.
        Additionally, we have another flyer here claiming to be
    from the Virginia State Board of Elections, stating that due to
    a larger expected voter turnout, the Democrats must vote on
    November 5th and that Republicans and their supporters may vote
    on November 4th.
        Once again, this is a deceptive practice. This is false and
    misleading information. This is not protected speech.
        For years, the Lawyers' Committee has documented this type
    of rise in deceptive tactics throughout our leadership of the
    Election Protection non-partisan coalition, which is the
    largest type of protection and voter education effort. In fact,
    it was out of these efforts that we realized that there was a
    need for legislation such as the deceptive practices bill.
        Through our 866-OUR-VOTE hotline, which is also a way in
    which we receive calls and information about reports throughout
    this country, we have already received calls from over half a
    million people complaining about problems in their elections.
    This includes deceptive tactics like we have mentioned here
    today.
        My colleague, Jenny Flanagan, will speak further to the
    instances that we encountered in the Wisconsin recall election.
        Recently, we have also released a report, a 2012 report, on
    deceptive practices, again, with Common Cause. In this report,
    we do provide recommendations on how to move forward, and in
    this particular report, we discuss the insufficiencies of
    federal and State law.
        Now, while we agree that there must be proper enforcement
    of current voting rights statutes--and that proper enforcement
    can provide a significant deterrent against many forms of
    intimidation, they are not always sufficient. In particular,
    some point to Section 11(b) of the Voting Rights Act as an
    adequate measure in preventing deceptive tactics. However, this
    section, commonly known as the ``anti-intimidation provision,''
    does not contain the necessary criminal penalties to punish
    deceptive practices.
        Moreover, only a few States actually have laws protecting
    voters from these types of practices, and those that have done
    so, it is not completely clear exactly what type of deceptive
    practices would be criminalized.
        In sum, because these current laws do not uniformly address
    variations of these types of deceptive tactics, prosecutions
    are, therefore, rare. Ensuring that misinformation is
    immediately corrected and disseminated in a timely manner may
    often actually be the best remedy, especially when Election Day
    is near, and this is why not only the private right of action
    but also the corrective action component of this bill is
    particularly important.
        This immediate dissemination of information, of corrective
    information, will mitigate the confusion experienced by voters,
    particularly as expressed by Senator Cardin earlier, as
    encountered in Maryland.
        I would like to briefly address the claims of massive voter
    fraud, including false and multiple registrations. In short,
    the evidence does not substantiate this to be a true claim.
    Actual voter fraud is extremely rare, and often it is not
    intentional. On the other hand, deceptive practices indeed are
    intentional efforts to disenfranchise entire communities.
        The Lawyers' Committee strongly supports the deceptive
    practices bill, and we urge this Committee to move forward with
    all deliberate speed in order to pass this law. As we come upon
    our 50th anniversary in 2013, we hope that we will also be
    celebrating the progress that this Nation has taken to protect
    the voting rights of all. As our Grand Marshal John Lewis often
    says, ``The time to act is now.'' We urge this Committee to
    fulfill our country's democratic promise of fair and equal
    elections and pass the Deceptive Practices and Voter
    Intimidation Prevention Act of 2011.
        Thank you.
        [The prepared statement of Ms. House appears as a
    submission for the record.]
        Chairman Leahy. Thank you. Every time I see my friend John
    Lewis, I cannot help but think it was not that long ago when
    Congressman Lewis was a young man marching for the right to
    vote and nearly died because he wanted to exercise his right to
    vote.
        Ms. House. Exactly.
        Chairman Leahy. Our next witness is John Park, Jr. He is of
    Counsel with Strickland Brockington Lewis in Atlanta. He
    specialized in election, redistricting, and legislative
    government affairs. He received his law degree from Yale
    University.
        Mr. Park, delighted to have you here. Please go ahead, sir.
    And your whole statement will be made part of the record.

        STATEMENT OF JOHN J. PARK, JR., OF COUNSEL, STRICKLAND
                BROCKINGTON LEWIS LLP, ATLANTA, GEORGIA

        Mr. Park. Mr. Chairman, Senator Grassley, thank you for the
    opportunity to speak this morning on Senate Bill 1994. As I
    indicated, I have concerns about this bill because it raises
    serious constitutional questions and because it is
    underinclusive, not because I approve of or condone the use of
    deceptive practices, voter intimidation, or both.
        The first point I would like to make is that before
    Congress creates new tools for the Department of Justice and
    private individuals to use, it should encourage the use of the
    ones that are presently existing. Those tools, including
    Section 11(b) of the Voting Rights Act, are generally
    underutilized and should be put to use before new criminal
    penalties are created.
        We are talking about regulating political speech which we
    know to be at the core of the First Amendment's protection, and
    we know that regulation chills speech. The bill under
    consideration may chill legitimate expressions of opinion. It
    may chill statements on unsettled grounds of fact or law. It
    may chill the making of even truthful statements, and it will
    do so within 90 days of an election, and that is both federal
    and State elections because they frequently coincide.
        During that time, anyone who wishes to speak will have to
    think about not simply whether what they are saying is truthful
    but, rather, whether that statement could expose them to an
    action from the opposing party. And what we know is coming on
    probably Thursday, we are talking about false statements, and
    the Court in Alvarez will address the power of Congress to
    impose criminal penalties for statements that are untruthful.
    And we know we cannot read anything into an oral argument, but
    it is going to be an interesting decision one way or the other.
        What you propose to do is give the Department of Justice
    and lawyers new tools, and when lawyers get tools, they put
    them to use, and frequently they put them to use trying to
    pound round pegs into square holes and square pegs into round
    holes.
        When you talk about knowing, what do we understand knowing
    to be? Do we know knew, somebody knew it? But we also think
    about whether they should have known it. So we are going to
    back up to should have known. We are going to back up to
    reckless. Somebody makes a statement that may be--that someone
    will deem reckless. Is that knowing? Is a statement that is
    made negligently a knowing statement?
        We are also likely to see, if a private right is created, a
    movement from effect to impute intent and from intent to impute
    knowledge. And all of this has an obvious effect on the
    opposing campaign and the opposing parties.
        In my experience in Alabama, as I talk about in my
    statement, with the Judicial Inquiry Commission, the canons
    that govern the conduct of judicial candidates regulated their
    ability to make statements that were neither known to be false
    or with reckless disregard of whether that information was
    false, and statements knowing that the information disseminated
    would be deceiving or misleading to a reasonable person.
        While there was no private right of action and only the
    Judicial Inquiry Commission could initiate charges, individuals
    would flyspeck the ads of their opposing candidates and make
    complaints to the Judicial Inquiry Commission in the hope that
    it would have an effect on the candidate. It would knot them
    up, require them to come in and explain the basis for their
    statement, and that had a pernicious effect in at least one
    campaign.
        I would note that you are talking about 90 days before an
    election. That is a sensitive time, and that should be read to
    heighten constitutional concerns.
        With respect to underinclusion, I have noted that Senate
    1994 does not address fraudulent registration, multiple
    registrations, or compromised absentee ballots, and I encourage
    the Committee to address those.
        Thank you for this opportunity, and I will be happy to
    answer any questions you may have.
        [The prepared statement of Mr. Park appears as a submission
    for the record.]
        Chairman Leahy. Well, thank you. As I said your statement
    will be made part of the record.
        I notice that in that you--I want to put something else in
    the record. You said that the part of your opposition is based
    on that the bill is underinclusive because it does not address
    fraud, and you identified testimony which raised some of the
    same concerns raised in this Committee in 2007. But I would
    also note that in 2007 the New York Times article reported that
    at that point 5 years into the Bush administration's crackdown
    on voter fraud, they turned up virtually no evidence of any
    organized effort at voter fraud, and so I will put that article
    also in the record.
        [The article appears as a submission for the record.]
        Chairman Leahy. Our next witness will be Ms. Jenny
    Flanagan. Ms. Flanagan is the director of voting and elections
    at Common Cause. Prior to that time, she worked with the New
    York State Legislature to implement the Help America Vote Act.
    She received her law degree and her master's in social work
    from the University of Denver.
        As with all witnesses, Ms. Flanagan, your full statement
    will be made part of the record. Please go ahead.

    STATEMENT OF JENNY FLANAGAN, DIRECTOR OF VOTING AND ELECTIONS,
                      COMMON CAUSE, WASHINGTON, DC

        Ms. Flanagan. Thank you, Mr. Chairman, Senator Grassley,
    for the opportunity to testify here today about the Deceptive
    Practices and Voter Intimidation Prevention Act and how this
    bill provides proactive means to guard against this most
    heinous form of voter suppression we are talking about today.
        Common Cause is a nonpartisan, nonprofit organization
    dedicated to empowering citizens, ordinary people, to make
    their voices heard in our political process. Common Cause,
    along with its coalition partners, including the Election
    Protection Coalition, have received numerous complaints over
    the years at our State offices around the country, from
    Colorado to Wisconsin, from Ohio to Pennsylvania. We have been
    responding to the kinds of intimidation and misleading acts
    that are being discussed here this morning.
        ``Voter suppression'' has become a household phrase in
    recent months, and this is nothing to be proud of. There is a
    gap between the rhetoric and the reality of voter fraud, and
    that cannot go unnoticed. What we are focused on today is a
    real threat to our elections--coordinated, intentional efforts
    to intimidate and deceive voters to suppress turnout in our
    elections.
        The single most fundamental right of all Americans is to
    cast a ballot in an election and be counted in our democratic
    process, so it is disheartening that today we are here to
    address a crisis in our elections where partisan operatives
    utilize trickery, lies, and deceit to change election outcomes.
        Most Americans are shocked and appalled when they hear that
    these campaigns exist, but we know that they do, and we cannot
    stand by and wait for it to get worse.
        I want to focus my few minutes here to talk about some
    recent examples of deceptive practices that have affected
    voters and how this bill will address those problems, because
    the impact of spreading false information is very real. When we
    receive a call from a voter who has been misled or is confused
    because of a deceptive flyer or robocall, we do everything in
    our power to help them access the correct information so that
    they can vote. But we do not hear from every affected voter.
        In Pueblo, Colorado, on November 3, 2008, on the eve of the
    Presidential election, voters in a heavily Latino Community
    received robocalls telling them that their precinct had changed
    and gave them incorrect precinct locations to go to instead.
    The clerk and recorder found out about this call from a family
    member and immediately called the local media and held an
    impromptu press conference on his front lawn.
        On election day, his office was still inundated by calls
    from confused and angry voters who wondered how their precinct
    could have changed so suddenly the night before an election.
    Without other tools for corrective action, Clerk Ortiz in
    Pueblo took the necessary steps to make sure that his voters
    were able to vote on election day. That is not the case around
    the country.
        Earlier this month, voters in Wisconsin, as has been
    discussed already, reported receiving robocalls on election day
    giving them false information. Specifically, voters stated that
    the calls said, ``If you signed the recall petition, your job
    is done and you do not need to vote on Tuesday.''
        Well, to counter these calls, elected officials, civic
    engagement groups locally and nationally, including Common
    Cause and the Lawyers' Committee through our Election
    Protection Coalition, we issued statements, we reached out to
    the media, calls for immediate corrective action, and let
    voters know what their rights were, and responsibilities, in
    order to participate in the election.
        The time for federal reform is now. Many States do not have
    statutes that adequately address deceptive practices, and where
    they do exist, they vary greatly in scope and strength. The
    prevention and redress of deceptive practices should be
    addressed uniformly.
        As I just told you about the Colorado clerk, immediate
    corrective action in the wake of deceptive practices must take
    place as soon as reports come in. This legislation establishes
    the framework to do just that on or prior to election day
    because after the election it is simply too late.
        Once enacted, this bill will be stronger and more
    comprehensive than existing State laws, and the critical
    components to combating deceptive practices requires the strong
    penalties, the immediate corrective action, and a true
    assessment of the problems that voters face each and every
    election. With these actions, we can assure that Americans can
    enjoy the free exercise of elections.
        Deceptive practices are among the worst forms of voter
    suppression where we intentionally mislead voters about the
    process and prevent them potentially from voting. It often goes
    unaddressed, and perpetrators are virtually never caught.
    Therefore, it is time to do something about it here and now so
    that our elections really can be of, by, and for the people.
        I appreciate the opportunity to testify today, and I look
    forward to the questions you may have.
        [The prepared statement of Ms. Flanagan appears as a
    submission for the record.]
        Chairman Leahy. I appreciate you being here. I appreciate
    all three of you being here.
        I am going to direct this to Ms. House. As I read the
    legislation, I see a very narrow carveout to avoid infringing
    on constitutionally protected speech. I am the son of a printer
    from Vermont, and I remember my parents one time as a child
    telling me to protect and revere the First Amendment, the right
    of free speech, the right to practice any religion you want, or
    none if you want, guaranteeing diversity of thought and views
    in America and guaranteeing our democracy. So I watch that very
    carefully.
        But let me ask you, you are a civil rights lawyer. You have
    had a lot of experience in this field. Do you have any concerns
    this legislation might have a chilling effect on speech?
        Ms. House. Thank you for that question, and the answer to
    your question is no. We have specifically put in place, working
    with your office and with Senator Schumer and Senator Cardin,
    language that would ensure that this is not indeed chilling
    political speech. It is narrowly tailored, and it serves a
    compelling interest of the State in order to protect this
    fundamental right to vote. And, by specifically putting an
    intent standard in there--we have to show that there is an
    intent to provide misleading and false information and that
    they knowingly did so, additionally providing that there is a
    timeline limiting this speech, so that this type of speech is
    only limited within that 90-day period before the election, and
    also ensuring that there is a limitation on the type of speech
    that we are actually regulating, which is time, place, manner.
    That is the type of tailoring that is necessary to conform to
    the standards which the Supreme Court has set forth in order to
    ensure that the First Amendment protections are provided.
        Chairman Leahy. Well, you know, one of the things we always
    look at in any legislation that comes up is: Is this necessary?
    And one of the arguments we are hearing against this
    legislation is there are plenty of remedies currently available
    to protect voters from intimidation and deception. I take it
    you do not agree with that.
        Ms. House. You are right. I do not agree with that, and the
    evidence does not bear that. We have documented this and have
    put together this report with Common Cause looking at the State
    laws that are currently in effect, and I believe only about 10
    of the States currently, I think upwards of 10 or so, that
    actually have some form of deceptive practices laws on the
    books. And, in fact, they are not very vigorous and not
    everyone is actually enforcing those laws in a way that is
    going to ensure that we are protecting people's rights when
    they do have these types of deceptive tactics and flyers that
    are occurring within their State.
        Maryland is an anomaly, and we are very encouraged and
    happy that there was proper enforcement that took place after
    what happened, particularly during Senator Cardin's race.
    However, that is not the case across the board. And as Jenny
    indicated earlier, we need a uniform law, particularly on the
    federal level, to ensure that we do have this type of
    enforcement by the Federal Government and that we are able to
    provide corrective action.
        Chairman Leahy. I looked at some of the material getting
    ready for this, the letters in Spanish targeting California
    Latino voters stating that it was a crime for immigrants to
    vote. I think of my grandparents who were immigrants from Italy
    and very, very proud American citizens, and I remember as a
    little boy going with them into the small town hall in Vermont
    where they lived to watch them vote.
        This letter did not point out that naturalized citizens
    like my parents and my grandparents or my wife's parents can
    vote just as any of the rest of us.
        Is this just one very rare example of intimidation, or do
    you have others?
        Ms. House. Unfortunately, that is not a rare example of
    intimidation. We have experienced that in other States as well.
    We have experienced those types of flyers, also other things in
    Arizona. We have also experienced types of flyers telling
    people that they will be criminalized or sent to jail, if they
    have a traffic ticket, therefore they cannot vote, they are
    ineligible, things like that in Wisconsin.
        It is particularly discouraging to have these types of
    flyers that are occurring across the country, and particularly
    when we know that they are being targeted to a certain
    demographic of voters. As you mentioned, the flyer that you
    spoke about was targeted to immigrants. Well, unless I know my
    history lessons wrong, I believe everyone is an immigrant
    except the Native American population here. I may not be an
    immigrant because my family was brought here as slaves, but,
    anyway, the point is that it is not something that we need to
    allow to continue in this country because this, in fact, is an
    attempt to undermine a very core value that we have in the
    democratic process, which is the right to vote.
        Chairman Leahy. My time has expired, and I have other
    questions and, Ms. Flanagan, I have a couple questions for you
    for the record, which I would like answered.
        Chairman Leahy. Senator Grassley.
        Senator Grassley. Thank you, Mr. Chairman. Thanks to all
    the witnesses.
        Mr. Park, you have experience in private right of action
    litigation involving political candidates. Most of the
    witnesses today see only very positive results that could come
    from private right of action suits under the bill. Could you
    describe some of the negative effects of private right of
    action in practice and under the Constitution against deceptive
    statements in the context of a political campaign?
        Mr. Park. Going back to my experience with the Alabama
    Judicial Inquiry Commission, one of the effects of bringing
    charges against a candidate who was then a judge was to
    disqualify that judge from further service, and the Judicial
    Inquiry Commission brought charges against one of the
    candidates for chief justice in a campaign with respect to
    certain statements made in advertisements. That affected the
    court's business and affected his ability to do his job, and as
    it turned out, the canons were substantially unconstitutional,
    the regulated speech that was within the scope of the First
    Amendment.
        Moving to this bill, you are empowering people to file
    lawsuits to seek to stop speech with which they disagree, and
    that speech may or may not be knowingly false, but the lawsuit
    is available for them to do that, and that will have a chilling
    effect on them. It will give them a tool that they can use to
    knot up opposing campaigns, and for those reasons I think
    Congress should hesitate before it creates this private right
    of action.
        Senator Grassley. Your prepared testimony mentions that
    many of the practices in the bill seek to prohibit what are
    already violations of federal criminal law. One of the few that
    is not is endorsement provisions. Could you outline how federal
    law already criminalizes many of the deceptive and intimidating
    practices that have been offered to supposedly justify the law?
        Mr. Park. There are several federal statutes, including one
    criminal statute, 18 U.S. Code 241. There is Section 11(b) of
    the Voting Rights Act, which is civil. And there is 42 U.S.
    Code 1971(b).
        In New Hampshire, the successful prosecution was brought
    under 18 U.S. Code 241, is my understanding. In Maryland, I
    believe it was under State law.
        If the Department of Justice does not want to use the
    existing remedies, it should explain why it has not used them
    to date.
        Senator Grassley. The bill would prohibit claims that a
    candidate or party has endorsed a candidate that it has not.
    Could you explain First Amendment problems with that
    prohibition?
        Mr. Park. A claim that someone has endorsed a candidate is
    not always easy to determine whether that is, in fact, true.
    Endorsements are sometimes subtle. Can you endorse by presence
    at a campaign event? And can you claim the support of someone
    with whom you have spoken privately? And the bill would give
    somebody a tool to file suit and say you were not, in fact,
    endorsed by that other person whose support you claim. And you
    are entitled to make truthful statements, and you would have to
    defend the truthfulness of the statement that you made.
        Senator Grassley. One of the witnesses today favors this
    bill because it affects only ``unprotected speech'' and would
    prohibit ``the dispersal of arguably fraudulent speech.'' Is
    arguably fraudulent speech unprotected speech under the First
    Amendment?
        Mr. Park. I do not think so. One of the points you can draw
    from the oral argument transcript in Alvarez is the Court seems
    to disagree with the notion that there is no--that the First
    Amendment does not prohibit all statements that are false, much
    less statements that are arguably false.
        Senator Grassley. Could you describe the unconstitutional
    chilling effect the enactment of this bill would create?
        Mr. Park. In the 90-day period before an election, someone
    who wishes to speak about any of the subjects that are in the
    bill, and in that regard there are things you can say that are
    truthful. Some people cannot vote. Some non-citizens in
    particular are not entitled to vote.
        You have to consider whether your expression of opinion,
    your expression with respect to an unsettled question, or
    simple truthful speech with which an opponent may disagree
    could bring you a lawsuit, and you have to weigh the value of
    that speech and your making that speech against the possibility
    that you will be sued, and the chilling effect is one to which
    the Supreme Court has repeatedly pointed to in First Amendment
    cases.
        Senator Grassley. Thank you.
        Chairman Leahy. Well, thank you. I am going to submit for
    the record statements in support for the bill from the NAACP,
    the National Urban League, the National Bar Association, the
    Leadership Conference, Brennan Center, Project Vote.
        [The statements appear as a submission for the record.]
        Chairman Leahy. I have to go to the floor. I am going to
    yield to Senator Whitehouse and then Senator Lee, and Senator
    Schumer is coming to take over the gavel. Thank you all for
    being here. We will chat more.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        I wonder if I could ask any of the witnesses to speak for a
    mom about the procedure known as ``voter caging'' and the
    history of that kind of activity and the extent to which this
    would be addressed by the measure you are describing. Ms.
    House.
        Ms. House. Voter caging is another type of deceptive and
    intimidation tactic that has also been occurring and----
        Senator Whitehouse. Could you describe it for the record of
    this hearing?
        Ms. House. Sure, absolutely. It is essentially kind of a
    term of art that is usually used in marketing, but now it is
    essentially when people--when organizations attempt to send
    materials or documentation to verify people's residency, and if
    that information is sent back and is not verified by no fault
    of their own, then they are challenged at the voting booth as
    not being a resident or eligible to vote. And this is something
    that we have been seeing that also has been on the rise, that
    we have encountered through Election Protection, particularly
    even in the last federal elections. Especially in 2008, we
    encountered a lot of voter caging that was occurring in
    Michigan, in Ohio, challenges that were happening particularly
    because of the foreclosure crisis. That is ongoing, and this is
    particularly sad because we know that we are in such a stark
    economic situation, even as we are getting better. However,
    people are still having challenges in the housing arena.
    Therefore, people are taking advantage of that situation and
    claiming that simply because a person or a family may be in the
    process of foreclosure proceedings, that therefore they are not
    eligible to vote. And that could not be further from the truth.
    They are----
        Senator Whitehouse. On the evidence of the mail having been
    returned.
        Ms. House. Exactly.
        Senator Whitehouse. It could also signify that they are a
    student away at school, a soldier, away on assignment.
        Ms. House. It could signify numerous things.
        Senator Whitehouse. There could be any number of reasons.
        Ms. House. That is right.
        Senator Whitehouse. And the reason that this is pernicious
    is because political organizations do it targeting specific
    neighborhoods in order to challenge the vote out of that
    neighborhood, and they choose neighborhoods that are associated
    with strong votes for the opposing party, correct?
        Ms. House. That is correct. That is correct.
        Senator Whitehouse. Would this bear on the voter caging
    problem?
        Ms. House. This particular bill?
        Senator Whitehouse. Yes.
        Ms. House. Well, this bill would address on some level the
    false--you know, challenges to inhibiting registration. It does
    not address, I think, as much as we need to, voter caging. I
    think that is one area in which we also support other types of
    legislation that you have introduced and we have supported in
    the past.
        Senator Whitehouse. I just wanted to be clear that this did
    not displace my legislation.
        Ms. House. No, it does not.
        Senator Whitehouse. It does not. It will be a supplement to
    it. Very good.
        Ms. House. We still support it.
        Senator Whitehouse. I will yield my time back. I see that
    Senator Schumer----
        Senator Schumer [presiding]. The Chair will note that no
    one ever displaces Sheldon Whitehouse or his legislation.
        Senator Lee.
        Senator Lee. Thank you, Mr. Chairman, and thanks to all of
    you for joining us.
        Ms. House, I wanted to start with you and just ask if you
    wanted to respond to Mr. Park's assertion that federal law in
    this area is sufficient as it now exists, or at least could
    cover much or most of the conduct that we are concerned about.
        Ms. House. Sure. Well, as Mr. Park indicated, correctly,
    11(b) is civil and so it does not criminalize and does not
    actually address deceptive tactic, and neither do other federal
    statutes, in fact. I mean, there are other conspiracy laws, and
    they deal with intimidation. They have not been utilized in a
    manner that is necessary in order to get to specific issues
    regarding flyers such as this.
        Senator Lee. Is their non-utilization due to the fact that
    the law itself is inadequate or is it just that the prosecutors
    have not----
        Ms. House. It is inadequate. It is both inadequate, and it
    has not been utilized by law enforcement authorities in order
    to prosecute these types of claims. And, in fact, the
    Department of Justice has indicated as such, that is why they
    support this type of legislation because it would enable them
    to be very directed in addressing these types of deceptive
    tactics and flyers.
        Senator Lee. With regard to State law, anytime I look at
    expanding our existing body of federal law, I instinctively
    tend to ask the question, you know, is State law adequate,
    particularly if we are talking about a criminal provision.
        When you referred to the fact that State law is not
    covering it, is this because State laws are themselves
    inadequate? Or is it the manner of their implementation that is
    inadequate?
        Ms. House. Well, it is both. For the most part, they are
    inadequate, and I think I misstated earlier, there are not 10
    deceptive practices bills. There are a number of States upwards
    of, I think, eight or so that actually have types of either
    fraud or other statutes in place that could be utilized to
    prosecute deceptive practices.
        Senator Lee. Garden variety fraud.
        Ms. House. Garden variety fraud statutes. They are not
    being utilized in that manner, and there are only a couple that
    actually have specific deceptive practices on the books, and
    they still are not clear in their definition of exactly what
    types of deceptive practices would be covered under that. And,
    therefore, it does make it very difficult to prosecute, and
    also it does not necessarily provide the required corrective
    action component that we are suggesting here today within
    Senate Bill 1994.
        Senator Lee. And do you believe that--let us suppose States
    were to adopt those. Is it your position that States should not
    be the ones focused on protecting federal elections, protecting
    the honesty and integrity of federal elections, that that ought
    to be a federal function because we are talking about federal
    offices?
        Ms. House. So you are asking whether or not if the States
    do everything, therefore we do not need the federal law?
        Senator Lee. Could States--if you had States adopting
    legislation that was more robust, would you still prefer to
    have federal legislation on the books to cover elections
    involving federal offices?
        Ms. House. Yes. Yes, I mean, we are working on both fronts.
    We are working both to try to work in the States to provide
    more robust statutes in the State legislatures, but we also
    believe that it is necessary on the federal level to have a
    more uniform requirement.
        Additionally, it is not always the case that State and
    local authorities will prosecute, nor is it the case that they
    will also provide the necessary information to disseminate if
    we do have deceptive flyers. And that is something that we do
    oftentimes rely upon the Federal Government to do, especially
    when you have targeted communities, particularly communities of
    color and those who are vulnerable that may not otherwise be
    protected by the State and local authorities.
        Senator Lee. Okay. Do you care to respond to Mr. Park's
    comments regarding the concerns that he has raised regarding
    the private right of action and how that might be abused?
        Ms. House. I think that as an attorney myself, a private
    right of action is a necessary vehicle in order to protect--in
    order to ensure that people's rights are protected, I think any
    law can be abused, and I do not think that it is justifiable to
    suggest that simply because there is potential for abuse that,
    therefore, you should not enact a law or provide a provision
    that could be so effective in protecting a fundamental right,
    which is the right to vote.
        Senator Lee. I understand that. I understand that, but you
    would agree with the fact that as law makers we have to look at
    each bill that we look at and try to figure out whether we
    would be creating as many or more problems as we are solving
    with it.
        Ms. House. Sure.
        Senator Lee. And so that is a legitimate thing for----
        Ms. House. It is a legitimate question to ask, and I think
    that in this regard we do not feel, the Lawyer's Committee does
    not feel that we would be creating more harm than good. In
    fact, it would be the complete opposite, that, in fact, we
    would be really providing those vehicles--a vehicle to deter
    and stop some of these deceptive tactics that are taking place
    across the country.
        Senator Lee. Okay. I see my time has expired. Thank you
    very much.
        Thank you, Chairman.
        Senator Schumer. Well, thank you, Senator Lee.
        First, I have a statement that I am going to put in the
    record.
        [The prepared statement of Senator Schumer appears as a
    submission for the record.]
        Senator Schumer. I have cared long about this. In fact, I
    am the lead cosponsor with Senator Cardin on the legislation.
    It is absolutely despicable what some people do. And to say
    that the First Amendment protects anything but threats does not
    make any sense whatsoever. The First Amendment is not absolute.
    Our Supreme Court should know that also. No amendment is
    absolute. We have libel laws. You cannot falsely scream
    ``Fire'' in a crowded theater. We have antipornography laws. I
    take it you support some of these things, Mr. Park. Do you
    support antipornography laws?
        Mr. Park. Yes, Senator Schumer.
        Senator Schumer. And you support libel laws?
        Mr. Park. Yes, Senator Schumer.
        Senator Schumer. Right, Okay. So the First Amendment is
    clearly not absolute. We know that because we all--no amendment
    is absolute. And, by the way, I believe that of all the
    amendments. Balancing is very important. It is easy to be an
    absolutist, and it is wrong, because life is shades of gray in
    just about every area. And in our Constitution as well, there
    are always balancing tests.
        So I just think some of these practices are just
    despicable, sending on what looks like official letterhead,
    ``Your date of voting has changed to Wednesday,'' just to
    Democrats and not to Republicans. These things--to me, people
    like this really belong in jail because they are really
    violating the fabric of our democracy. I just find them
    despicable. Despicable.
        One of the things we are facing in this democracy is less
    and less faith in it, and one of the reasons is because people
    have found ways to interfere with democracy that nobody would
    support.
        There is a movement to suppress voting. ALEC and other
    groups have done this, and, again, I find that to just be
    corrosive of democracy.
        So no amendment is absolute. Obviously, there is a 15th
    Amendment, there is a First Amendment. So I guess my question--
    this is to Mr. Park--is: You would agree that a specific
    threat, it is verbal, ``If you vote, I am going to shoot
    you''--Okay, let us take a bald, horrible one--could be
    prohibited federally? Is that true?
        Mr. Park. I think it could be prohibited----
        Senator Schumer. Under the 15th Amendment?
        Mr. Park [continuing]. Under existing law.
        Senator Schumer. What?
        Mr. Park. I think it could be prohibited under existing
    law.
        Senator Schumer. Well, maybe it could, but let us say some
    State does not have a law that covers that specific situation.
    Just hypothetically, I am asking you could the 15th Amendment--
    would the 15th Amendment trump the First Amendment--because
    obviously it is just speech, but speech that we have always
    prohibited--in that instance? Assuming the State had no law,
    let us just agree for the sake of argument.
        Mr. Park. Assuming that there was neither federal or State
    law, I think that you could criminalize that conduct.
        Senator Schumer. Okay. So then the question is: The conduct
    we are talking about prohibiting here, which is not direct
    threat but a step down, two steps down--you can define it as
    you will--why is that protected--or why does not the 15th
    Amendment trump that type of activity as well? I would like to
    hear that out from you. I know some people have talked in
    similar questions, but I would like to hear a direct answer on
    that. It has the same effect, by the way, of prohibiting people
    from voting, getting them not to vote, and by being
    deliberate--you know, there are stringent requirements in the
    bill--by deliberately lying to them. There is no intent to
    inform or anything else.
        Mr. Park. I understand that, Senator Schumer. My argument
    was that existing federal law, which is underutilized, already
    provides the possibility of deterring and punishing that kind
    of----
        Senator Schumer. No, I understand that, sir, but my
    question to you is whether this law is unconstitutional or
    violative of the First Amendment. And you are arguing that it
    is, I presume.
        Mr. Park. My argument is that it raises serious
    constitutional concerns in that it may chill protected speech.
    And we do not know yet what the U.S. Supreme Court is going to
    do in United States v. Alvarez, the Stolen Valor case. It will
    speak one way or another and may provide substantial guidance
    on the ability of Congress to punish speech that is not
    truthful.
        Senator Schumer. Right. And here we are not disputing that
    the speech is not truthful. We are not disputing that it was
    done maliciously. We are not disputing that the intent was to
    prevent people from voting. To me, the distinction on a
    constitutional basis between the direct threat, which we would
    all agree would be constitutionally--the law going after that
    would be constitutionally protected, and this is not--it is not
    a real distinction. It is not a difference that makes a
    difference, as the professors used to say at law school.
        Do either Ms. House or Ms. Flanagan want to comment on
    that?
        Ms. Flanagan. Thank you. I think this is an important
    discussion, and let us remember what we are talking about. We
    are talking about lying. We are talking about intentionally
    lying to deceive an eligible from participating in an election,
    our most fundamental right to access our democracy.
        So I do not think that this can or should be protected. I
    mean, as you said in your opening comments, you cannot yell
    ``Fire'' in a crowded theater. There are----
        Senator Schumer. Falsely.
        Ms. Flanagan. Falsely. There are limitations.
        [Laughter.]
        Ms. Flanagan. And that is the point here, too, right?
        Senator Schumer. Yes.
        Ms. Flanagan. False information, lies about our right to
    vote cannot be protected, and we have got to do something about
    it. And I think what is important about this bill is not just
    penalizing those actions, but doing something about it by
    requiring this corrective action so we have an immediate
    response and by gathering more information through the
    reporting requirement. You know, groups like ours, we have been
    researching and talking with voters over the years, but we need
    to create a congressional record so we can truly make the
    changes necessary.
        Senator Schumer. All right. Ms. House.
        Ms. House. I would simply agree with what Ms. Flanagan has
    stated. We completely believe that this is not protected
    speech, that deceptive flyers and tactics cannot go unaccounted
    for and unaddressed. It is particularly pernicious because we
    are targeting these vulnerable communities. And so, I mean, I
    do not know that there is much else to say other than this has
    to be addressed, that we are talking about protecting a
    fundamental right. And if we simply state that we cannot
    provide for this protection of a fundamental right because we
    are worried that somewhere down the line there may be a
    potential--some possibility that speech may be chilled is
    simply unacceptable because there are limitations on speech.
    And this is false speech. These are false claims,
    misrepresentations and misinformation, and, therefore it is not
    protected. And we do believe that there is Supreme Court
    precedent to substantiate that. And even with Alvarez coming in
    the near future, that case does provide still some guidance as
    to what we are talking about within this bill.
        We indeed provide that there has to be an intent. The
    information has to be shown to be materially false, and
    knowingly. And so, therefore, that actually still is within the
    guidelines of what we are talking about in Alvarez, either way
    it goes.
        And so, regardless, we do believe that this is a bill that
    we can move forward with and that would not only protect the
    fundamental right to vote, but not chill political speech.
        Senator Schumer. Thank you, Ms. House. And I see Senator
    Coons is here. But we drafted it very carefully that way, and,
    you know, you can always make the argument against any
    intentional tort or intentional--or in criminal law, with
    intent, ``Well, you are going to chill something because some
    people might do something carelessly,'' or whatever. That is
    why we have intent. And if you do not believe that intent
    works, you are going to throw out, you know, 20 percent of the
    laws in this country. And I think it is a subterfuge, to be
    honest with you. I think it is people who--some of the people
    who argue this are not really appalled by the kind of behavior
    we have talked about, and so they hide behind an example that
    would not fit under the intentional clause.
        Ms. House. Right. If I could add briefly, I want to be very
    clear that the Lawyer's Committee has always vigorously
    supported the right to freedom of speech, and so this is not
    about a preference of one particular amendment over another. We
    are here because we believe in the importance of enforcing all
    of these rights, and this right is fundamental, the right to
    vote, and we do have these limitations on false speech.
        Senator Schumer. Okay. Well, thank you all.
        I am going to call on Senator Coons, but, again, I want to
    thank Senator Cardin for his leadership, and I am proud to be
    his partner in this effort.
        Senator Coons.
        Senator Coons. Thank you, Senator Schumer.
        To Ms. Clay House, if I might, I just want to thank you for
    your testimony, which I had the chance to read. I have been
    presiding for the last hour, thus my late arrival. I want to
    thank the Lawyers' Committee for the great work it has done
    since President Kennedy urged its formation, now a generation
    ago, and to thank you for the work you have done to defend the
    rights of voters across America as well as to ensure Section 5
    of the Voting Rights Act endures.
        You have also been instrumental in ensuring compliance with
    the National Voter Registration Act, and that has resulted in
    hundreds of thousands of citizens being able to vote.
        You made some reference to recent efforts, techniques to
    advance voter suppression in particularly chilling or
    disturbing ways, and I am interested in ways that new media,
    including social media, has been used to suppress voter
    participation in very targeted ways. Could you talk in a little
    more detail about that, about those trends, and about what you
    think we can and should be doing to deter that?
        Ms. House. Sure, I am happy to. Once again, we have
    addressed some of these issues in our report that we will be
    releasing, but with the new technology--Facebook, Twitter,
    something that I barely know much about, but my son will teach
    me very soon--this type--text messaging is going out across the
    country in which we have noticed particular targeting against
    students, by those who are utilizing this type of technology.
    On the Internet, we have seen messages going out throughout
    college campuses giving them false information. Because there
    is an ability to reach these wider audiences, it is
    particularly distressing, and it is much more difficult to try
    to stop some of these types of tactics if we do not have laws
    that are in place that are very specific to these types of
    acts.
        And so, again, they are really targeting particularly those
    communities that are really utilizing these types of media, as
    I mentioned, Facebook and Twitter accounts, and through
    smartphones and text messaging.
        And so we have taken the deliberate action of trying to
    make sure that we are doing our best to get the right
    information out if we are finding out about these types of
    incidents through Election Protection and even through a new
    app coming out on smartphones to also make sure that we have an
    ability to get information to those who have this.
        So, you know, this is something that we have encountered,
    and we are really trying to address this as best as possible.
        Senator Coons. So the good old-fashioned practices of voter
    misinformation and voter suppression through flyers or hand-
    distributed leaflets have continued in the modern age.
        Ms. House. It has continued in the modern age, yes. It is
    the same type of misinformation, now just through the Internet
    and now through other types of social media.
        Senator Coons. An example that was cited, I think, in
    prepared testimony of students at George Mason, thousands of
    them, literally thousands of them receiving mistaken
    information about the timing of the vote.
        Ms. House. Yes.
        Senator Coons. Have there been other examples of that, or
    is that really the sole example in the country?
        Ms. House. No, there are other examples. I cannot pull them
    all out from memory at the moment. I apologize. But there are,
    I believe, other examples, and that is just one of them that we
    wanted to particularly illuminate.
        I will say that, you know, I think we mentioned--correct
    information was sent out in order to make sure the students did
    get the right information, and that is something we want to
    encourage and happen, but it is not guaranteed. And so,
    therefore, that is why we need to have this type of legislation
    to mandate that corrective action, by different authorities.
        Senator Coons. I also understand there has been more
    active, in some cases more aggressive, use of challengers at
    polling places that seem to be specifically targeted at raising
    concerns or fears amongst those voting in particular districts
    or areas. Can you speak a little bit more about that?
        Ms. House. Absolutely. There has been this wave of this
    type of voter suppression tactics that have been taking place
    across the country, and deceptive tactics is one of them we
    have seen in addition to other types of intimidation tactics.
    People being challenged at the polling place is distressing,
    again, targeted at certain communities, communities of color,
    immigrant communities, targeted at students. We know of an
    organization, True the Vote, who has already determined that
    they are going to send, I believe, a million people across the
    country to be challengers and to specifically challenge people
    at the polling place as they are attempting to exercise this
    right to vote. And what that does is it creates or it puts in
    place a whole round of restrictions or requirements that a
    voter is now going to have to jump through in order to vote.
        Under many State laws, once you have been challenged, you
    have to provide additional State ID or additional
    identification. And fortunately we do have the Help America
    Vote Act, which does allow for people, if they do not have the
    necessary identification, that they are allowed to vote by
    provisional ballot. However, because of the loopholes that are
    in place in some State laws, they are not able to necessarily
    have that vote counted. It is not guaranteed.
        So the reason that these challengers are put in place is in
    order to create that type of confusion and because people are
    not aware of the types of IDs and other types of information
    they are going to need to have in order to vote, and it creates
    this confusion at the polling place and also could ultimately
    change the election because you have many voters who thought
    that they were going to be able to have their vote counted but
    no longer are. And that is a very distinct form of voter
    suppression that has to be addressed.
        Senator Coons. Last, if I might, the Help America Vote Act,
    the ability to vote on a provisional ballot, this process of
    challengers at polls and demanding identification and proof of
    citizenship and so forth, the argument for why that is
    legitimate or necessary activity is allegations of widespread
    voter impersonation fraud.
        How many demonstrated, proven cases of voter impersonation
    fraud are there? How widespread a problem is this in keeping
    our electoral process legitimate, free, fair, and open?
        Ms. House. Right. Well, the numbers are so minimal that it
    is not massive, it is not widespread, as I think even Senator
    Leahy indicated earlier. Even during the Bush administration,
    the Department of Justice conducted its own investigation over
    a period of 5 years and did not find any type of massive voter
    impersonation fraud taking place across this country.
        In fact, what was instead found was that many people might
    have had multiple registrations only because they moved or it
    was unintentional or there were administrative errors by
    election officials. And so this was not an attempt,
    particularly of immigrants and those who are ineligible to
    vote, to try to commit voter fraud at the polling place, which,
    again, is not reasonable considering that anyone, if they are
    undocumented, would not go to the polling place to subject
    themselves to the potential to be deported over voting. It is
    not a reasonable assumption or claim that I think is being made
    to state that there are attempts at massive voter fraud.
        Senator Coons. Well, thank you, Ms. Clay House. Thank you
    for your testimony today.
        Just in closing, I think we have a balance we have to
    strike. We need to, I think, be vigorous and engaged in
    preventing disenfranchisement of those who are eligible to
    vote, who are entitled to vote, and who we want to vote by
    restrictive ID laws, and to strike a fair and appropriate
    balance where there are very few cases of demonstrated voter
    impersonation fraud. We should instead be investing the
    resources and the time in ensuring that those who can vote are
    registered to vote, that the process of voting is free and fair
    and open. We hold ourselves out to the rest of the world as
    sort of a beacon of democracy, and I think we can all agree
    that what we should be doing is protecting the right to vote
    and ensuring that everyone who has a right to vote is able to
    exercise that franchise freely.
        Thank you to all the members of the panel, and thank you,
    Senator Schumer, for holding the hearing open for a few moments
    so that I could join you.
        Senator Schumer. Well, thank you, Senator Coons. It was
    worth it given your questions.
        I would just make one point. Our legislation applies no
    matter who is targeted. You could target the poorest people in
    town, the richest people in town. If you do these kinds of
    things for whatever your political purpose, it would apply.
        With that, I want to thank our witnesses. This is important
    stuff. It goes to the wellspring of our democracy, and the
    hearing record will be open for 7 days for people to submit
    statements and additional questions for the witnesses.
        Thank you, and the hearing is adjourned.
        [Whereupon, at 11:29 a.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

                                A P P E N D I X

                  Additional Material Submitted for the Record

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                    Prepared Statement of Hon. Patrick Leahy

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                 Prepared Statement of Hon. Charles E. Schumer

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                    Prepared Statement of Hon. Jeff Sessions

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                 Prepared Statement of Hon. Benjamin L. Cardin

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                     Prepared Statement of Tanya Clay House

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                    Prepared Statement of John J. Park, Jr.

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                      Prepared Statement of Jenny Flanagan

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            Questions submitted by Senator Leahy for Jenny Flanagan

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          Questions submitted by Senator Grassley for Tanya Clay House

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         Questions submitted by Senator Grassley for John J. Park, Jr.

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           Questions submitted by Senator Grassley for Jenny Flanagan

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        Responses of Tanya Clay House to questions submitted by Senator
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       Responses of John J. Park, Jr. to questions submitted by Senator
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     Responses of Jenny Flanagan to questions submitted by Senators Leahy
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                    Miscellaneous Submissions for the Record

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