[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
----------
U.S. GOVERNMENT PRINTING OFFICE
88-840 PDF WASHINGTON : 2014
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Hon. Patrick Leahy
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Hon. Charles E. Schumer
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Hon. Jeff Sessions
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[GRAPHIC] [TIFF OMITTED] T8840.006
Prepared Statement of Hon. Benjamin L. Cardin
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Tanya Clay House
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of John J. Park, Jr.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Jenny Flanagan
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions submitted by Senator Leahy for Jenny Flanagan
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions submitted by Senator Grassley for Tanya Clay House
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions submitted by Senator Grassley for John J. Park, Jr.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions submitted by Senator Grassley for Jenny Flanagan
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of Tanya Clay House to questions submitted by Senator
Grassley
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of John J. Park, Jr. to questions submitted by Senator
Grassley
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of Jenny Flanagan to questions submitted by Senators Leahy
and Grassley
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Miscellaneous Submissions for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]