[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 
                                Grassley

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   Responses of John J. Park, Jr. to questions submitted by Senator 
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                Miscellaneous Submissions for the Record

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