S. 453, Deceptive Practices and Voter Intimidation Prevention Act of 2007

The “Deceptive Practices and Voter Intimidation Prevention Act of 2007” is an attempt by Congress to respond to a perceived threat to the integrity of modern federal elections posed by practices designed to mislead, confuse or intimidate potential voters. Among other things, the bill adds several new prohibitions to the federal voter intimidation statute, 18 U.S.C. § 594. It criminalizes specifically the distribution, or production with intent to distribute, within 60 days before an election, of false or misleading information regarding (1) the time, place or manner of a federal election; (2) the qualifications for or restrictions on voter eligibility for such an election; and (3) the explicit endorsement by any person or organization of a candidate running for office. The distribution of such information would be criminalized under the bill when the distributor both knows the information is false and intends to prevent another person from exercising his or her right to vote.

Violators of this prohibition would be subject to up to a $100,000 fine and 5 years in prison. Attempts and conspiracies to violate the proposed statute would be punished the same. The bill would also expand the penalty for voter intimidation as currently defined in 18 U.S.C. § 594 from 1 to 5 years in prison, thus transforming the crime from a misdemeanor to a federal felony. Additionally, it would direct the Sentencing Commission to review and, if appropriate, amend the Federal sentencing guidelines with respect to voter intimidation and deceptive acts.

S. 453 also provides for a private civil right of action for any person aggrieved by a violation of the bill’s prohibitions. It additionally permits any person to report the communication of any prohibited material to the Attorney General and directs the Attorney General, upon receipt of such a report, to determine whether there is a reasonable basis to find that false election information has been distributed. Upon determining that a reasonable basis exists, the Attorney General would be required to undertake all effective measures necessary to provide correct information to the voters affected and to refer the matter to Federal or state authorities for prosecution or possible civil action.

The Senate Committee on the Judiciary held hearings on S. 453 on June 7, 2007. The hearings were heavily focused on several well-publicized incidents of the distribution of false or misleading election materials preceding recent federal elections. Of particular concern was the dissemination of false information apparently designed to target minority voters. Several senators, including Senators Cardin, Leahy and Schumer, spoke in favor of the bill. However, questions were raised about, among other things, the potential scope of the bill, the Senate’s reliance on anecdotal evidence of deceptive practices in drafting the bill, and potential problems associated with both the bill’s attempt to define what constitutes a criminal “deceptive practice” and its authorization of federal prosecutors to make instantaneous and unilateral judgments about who should be charged under the bill in the days immediately preceding a federal election.

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