Testimony on The Deceptive Practices and Voter Intimidation Prevention Act of 2011

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Written Testimony of

Brennan Center for Justice at NYU School of Law 

Submitted to the

U. S. Senate

Committee of the Judiciary

Regarding

The Deceptive Practices and Voter Intimidation Prevention Act of 2011 (S.1994)

June 25, 2011

Chairman Leahy, Ranking Member Grassley, and Members of the Committee, thank you for the opportunity to submit testimony for the record on the critical issue of deceptive practices and voter intimidation.  The Brennan Center for Justice at NYU School of Law writes to express its support of the Deceptive Practices and Voter Intimidation Prevention Act of 2011 (S.1994), introduced by Senators Ben Cardin and Charles Schumer.   

The Brennan Center for Justice is a nonpartisan think tank and legal advocacy organization that focuses on issues of democracy and justice. Among other things, we seek to ensure fair and accurate voting procedures and systems and to promote policies that maximize citizen enfranchisement and participation in elections.

S.1994 would criminalize the knowing and intentional communication of false and misleading information about the time, place, or manner of elections, and the rules governing voter eligibility and voter registration.  It would also ensure that voters affected by deceptive or intimidating practices are provided with correct information from a reliable source in a timely manner. This would fill a significant gap in the laws that safeguard the integrity of our elections. 

Unfortunately, every election cycle, many voters—disproportionately those in minority communities—are confronted with information designed to prevent them from voting or casting meaningful ballots.  In Maryland in 2010, a political consultant paid for robocalls on election night to thousands of African-American households that told voters, while the polls were still open, they should “relax,” because Governor O’Malley had won re-election.  In 2008, 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 text messages stating the same thing.  In 2006, voters with Latino surnames in Orange County, California were sent letters wrongly suggesting it is illegal for naturalized citizens to vote.  These are not isolated incidents.  They reflect a rash of voter deception and intimidation wholly at odds with the spirit of our democracy. 

These incidents are bad enough. Worse still is that today in most states they are simply not against the law.  Nor is there any authority charged with investigating these incidents and providing voters with corrected information. S.1994 would correct these oversights, helping to ensure that ill-intentioned individuals do not effectively deprive others of their right to vote. Fairness and democracy require no less.

In introducing this bill, Senators Cardin and Schumer recognize the federal government’s compelling interesting in preserving the integrity of its election process by protecting voters deception and intimidation. While the First Amendment protects political speech, it does not protect speech that is designed to intentionally interfere with the ability or intention of American citizens exercising their right to vote. Passage of this Act will give federal law enforcement agencies and private citizens the opportunity to stop bad actors from undermining America’s elections. We therefore respectfully urge you to pass S. 1994.