Deceptive practices are preventing eligible Americans — particularly minority voters — from participating in democracy, according to Tanya Clay House, the director of public policy at the Lawyers’ Committee for Civil Rights Under Law.
“Deceptive practices continue to disenfranchise millions of American voters by interfering with their right to freely cast a ballot,” she said (PDF) at a Senate Judiciary Committee hearing on Tuesday. “For too long, Congress had not taken affirmative action to deter deceptive voting practices. The current political climate of deception and intimidation has kept us from reaching our goal of voting equality.”
The Senate panel held the hearing to consider the Deceptive Practices and Voter Intimidation Prevention Act of 2011. The bill would establish criminal penalties for anyone who purposely misled voters about voter eligibility, a political endorsement of a candidate, or the time and place of a federal election.
The Voting Rights Act prohibits voter intimidation and voter fraud. In addition, numerous states have enacted laws to deter voter deception.
But the current laws are insufficient to protect against deceptive practices, House said. The current laws either do not contain criminal penalties, or are too narrow in scope or vague to be enforced.
“In sum, state laws have been largely ineffective in deterring or punishing deceptive election practices and voters continue to pay the price,” she explained. “As a result, prosecutions are rare, corrective information is not disseminated in a timely manner, and similar practices continue to influence and undermine the integrity of the elections.”
During the 2010 elections, Kansas voters received automated calls telling them they could not vote without their voter registration card and proof of home-ownership — which was false. In Maryland the same year, voters received automated calls that claimed the Democratic candidate Martin O’Malley won the gubernatorial election hours before the polls had closed and advised them to “relax.”
Besides robo-calls, House said flyers with bogus election rules and deceptive online messages were other common ways of misleading voters.
Attorney John J. Park, who testified (PDF) against the bill, worried that it could have a chilling effect on free speech. He explained that what constituted false information was not always a black and white issue.
“Anyone who contemplates speaking about the qualifications of voters (and there are some people who cannot vote) or endorsements that a candidate has received (and candidates get endorsements) will have to think about the possibility that the U.S. Department of Justice or a private individual will take exception to it,” he said.
But House contended that fraud was not protected speech under the First Amendment.
“False statements have little constitutional value. They do little to contribute to the ‘uninhibited, robust, and wide-open debate’ on public issues, the key principle underlying freedom of speech protection.”
In addition to prohibiting any person from purposely misleading voters, the Deceptive Practices and Voter Intimidation Prevention Act would also allow people to report false information and direct the Justice Department to provide corrective information.