Deceptive Practices and Voter Intimidation Prevention Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1840 To prohibit deceptive practices in Federal elections. IN THE SENATE OF THE UNITED STATES MAY 26, 2021 Mr. CARDIN (for himself, Ms. KLOBUCHAR, Mr. BLUMENTHAL, Mr. WYDEN, Ms. HIRONO, Mrs. FEINSTEIN, Mr. MERKLEY, and Mr. VAN HOLLEN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prohibit deceptive practices in Federal elections. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Deceptive Practices 4 and Voter Intimidation Prevention Act of 2021’’. 5 SEC. 2. FINDINGS. 6 Congress makes the following findings: 7 (1) The right to vote by casting a ballot for 8 one’s preferred candidate is a fundamental right ac- 9 corded to United States citizens by the Constitution, 10 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1840 IS and the unimpeded exercise of this right is essential 1 to the functioning of our democracy. 2 (2) Historically, certain citizens, especially ra- 3 cial, ethnic, and language minorities, were prevented 4 from voting because of significant barriers such as 5 literacy tests, poll taxes, and property ownership re- 6 quirements. 7 (3) Some of these barriers were removed by the 8 15th, 19th, and 24th Amendments to the Constitu- 9 tion. 10 (4) Despite the elimination of some of these 11 barriers to the polls, the integrity of today’s elec- 12 tions is threatened by newer tactics aimed at sup- 13 pressing voter turnout. These tactics include ‘‘decep- 14 tive practices,’’ which involve the dissemination of 15 false or misleading information intended to prevent 16 voters from casting their ballots, prevent voters from 17 voting for the candidate of their choice, intimidate 18 the electorate, and undermine the integrity of the 19 electoral process. 20 (5) Furthermore, since the decision in Shelby 21 County v. Holder in which the Supreme Court 22 struck down the coverage formula used by the Vot- 23 ing Rights Act of 1965 to determine which States 24 with a history of racial discrimination must affirma- 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1840 IS tively receive government permission before changing 1 local voting laws, there have been Federal court de- 2 cisions finding or affirming that States or localities 3 intentionally discriminated against African Ameri- 4 cans and other voters of color. 5 (6) Denials of the right to vote, and deceptive 6 practices designed to prevent members of racial, eth- 7 nic, and language minorities from exercising that 8 right, are an outgrowth of discriminatory history, in- 9 cluding slavery. Measures to combat denials of that 10 right are a legitimate exercise of congressional power 11 under article I, section 4 and article II, section 1 of, 12 and the 14th and 15th Amendments to, the United 13 States Constitution. 14 (7) For the last few decades, there have been 15 a number of instances of deceptive or intimidating 16 practices aimed towards suppressing minority access 17 to the voting booth that demonstrates the need for 18 strengthened protections. 19 (8) In addition, in at least one instance in 20 1990, thousands of voters reportedly received post- 21 cards providing false information about voter eligi- 22 bility and warnings about criminal penalties for 23 voter fraud. Most of the voters who received the 24 postcards were African-American. 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1840 IS (9) During the 2004 elections, Native American 1 voters in South Dakota reported being required to 2 provide photographic identification in order to vote, 3 despite the fact that neither State nor Federal law 4 required such identification. 5 (10) In the 2006 midterm elections, thousands 6 of Latino voters received mailings warning them in 7 Spanish that voting in a Federal election as an im- 8 migrant could result in incarceration—despite the 9 fact that any immigrant who is a naturalized citizen 10 of the United States has the same right to vote as 11 any other citizen. 12 (11) In 2008, fliers were distributed in pre- 13 dominantly African-American neighborhoods falsely 14 warning that people with outstanding warrants or 15 unpaid parking tickets could be arrested if they 16 showed up at the polls on election day. In the same 17 year, there were reports of people receiving text mes- 18 sages on election day asking them to wait until the 19 following day to vote. 20 (12) In 2012, there were reports of voters re- 21 ceiving calls falsely informing them that they could 22 vote via telephone. 23 (13) On January 6, 2017, the Office of the Di- 24 rector of National Intelligence published a report ti- 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1840 IS tled ‘‘Assessing Russian Activities and Intentions in 1 Recent U.S. Elections’’, noting that ‘‘Russian Presi- 2 dent Vladimir Putin ordered an influence campaign 3 in 2016 aimed at the U.S. Presidential election.’’. 4 Moscow’s influence campaign followed a Russian 5 messaging strategy that blends covert intelligence 6 operation—such as cyber activity—with overt efforts 7 by Russian Government agencies, State-funded 8 media, third-party intermediaries, and paid social 9 media users or ‘‘trolls.’’ These influence operations 10 included messaging that targeted African-American 11 voters with misinformation. 12 (14) On April 18, 2019, Special Counsel Robert 13 Mueller released a report titled ‘‘Report on the In- 14 vestigation into Russian Interference in the 2016 15 Presidential Election’’, which concluded that ‘‘the 16 Russian government interfered in the 2016 presi- 17 dential election in sweeping and systematic fash- 18 ion.’’. The report details that Russia interfered in 19 the 2016 presidential election principally through 20 two operations: first, through a Russian government 21 sponsored social media influence campaign, and sec- 22 ond, by Russian intelligence ‘‘computer-intrusion’’ 23 operations against those associated with both presi- 24 dential campaigns. The Mueller Report details how 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1840 IS Russian agents intentionally targeted black social 1 justice groups and created fake accounts purporting 2 to represent black social justice groups in order to 3 spread disinformation and sow division. 4 (15) Social media makes the mass dissemina- 5 tion of misleading information easy and allows per- 6 petrators to target particular audiences with preci- 7 sion. One analysis documented hundreds of messages 8 on Facebook and Twitter designed to discourage or 9 prevent people from voting in the 2018 election. In 10 2016, these false statements were extremely preva- 11 lent with both domestic and foreign actors. Russian 12 operatives engaged in a concerted disinformation 13 and propaganda campaign over the internet that 14 aimed, in part, to suppress voter turnout, especially 15 among Black voters. These efforts by the Russian 16 government continued and became more aggressive 17 in the 2020 election cycle. 18 (16) During the 2020 presidential election, 19 Texas voters received robocalls stating that the 20 Democratic primary would be taking place after its 21 actual date. In the same year, communities of color 22 in Michigan, Pennsylvania, Ohio, Illinois, and New 23 York were targeted by robocalls sharing false infor- 24 mation about how their data would be shared if they 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1840 IS voted by mail. Widespread disinformation was tar- 1 geted at Latino communities in Florida and other 2 States, particularly through social media. 3 (17) During the 2020 presidential election, vot- 4 ers in some precincts faced voter intimidation during 5 early voting and on election day. The Election Pro- 6 tection hotline received nearly 32,000 calls on elec- 7 tion day. Reports from the Voting Rights Defender 8 and Prepared to Vote project teams and the NAACP 9 Legal Defense and Educational Fund, Inc. showed 10 that minority voters were disproportionately im- 11 pacted by voter intimidation. Incidents included 12 3,000,000 robocalls telling people to stay home on 13 election day and armed people at polling sites on 14 election day in Florida, North Carolina, and Lou- 15 isiana. Additionally, election officials, volunteers, and 16 electors faced unprecedented intimidation including 17 doxxing, death threats, and other intimidating com- 18 munication. 19 (18) Those responsible for these and similar ef- 20 forts should be held accountable, and civil and crimi- 21 nal penalties should be available to punish anyone 22 who seeks to keep voters away from the polls by pro- 23 viding false information. 24 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1840 IS (19) Moreover, the Federal Government should 1 help correct such false information in order to assist 2 voters in exercising their right to vote without confu- 3 sion and to preserve the integrity of the electoral 4 process. 5 (20) The Federal Government has a compelling 6 interest in ‘‘protecting voters from confusion and 7 undue influence’’ and in ‘‘preserving the integrity of 8 its election process’’. Burson v. Freeman, 504 U.S. 9 191, 199 (1992). 10 (21) The First Amendment does not preclude 11 the regulation of some intentionally false speech, 12 even if it is political in nature. As the Supreme 13 Court of the United States has recognized, ‘‘[t]hat 14 speech is used as a tool for political ends does not 15 automatically bring it under the protective mantle of 16 the Constitution. For the use of the known lie as a 17 tool is at once at odds with the premises of demo- 18 cratic government and with the orderly manner in 19 which economic, social, or political change is to be 20 effected. . . . Hence the knowingly false statement 21 and the false statement made with reckless disregard 22 of the truth, do not enjoy constitutional protection.’’. 23 Garrison v. Louisiana, 379 U.S. 64, 75 (1964). 24 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1840 IS SEC. 3. PROHIBITION ON DECEPTIVE PRACTICES IN FED- 1 ERAL ELECTIONS. 2 (a) PROHIBITION.—Subsection (b) of section 2004 of 3 the Revised Statutes (52 U.S.C. 10101(b)) is amended— 4 (1) by striking ‘‘No person’’ and inserting the 5 following: 6 ‘‘(1) IN GENERAL.—No person’’; and 7 (2) by inserting at the end the following new 8 paragraphs: 9 ‘‘(2) FALSE STATEMENTS REGARDING FEDERAL 10 ELECTIONS.— 11 ‘‘(A) PROHIBITION.—No person, whether 12 acting under color of law or otherwise, shall, 13 within 60 days before an election described in 14 paragraph (5), by any means, including by 15 means of written, electronic, or telephonic com- 16 munications, communicate or cause to be com- 17 municated information described in subpara- 18 graph (B), or produce information described in 19 subparagraph (B) with the intent that such in- 20 formation be communicated, if such person— 21 ‘‘(i) knows such information to be ma- 22 terially false; and 23 ‘‘(ii) has the intent to impede or pre- 24 vent another person from exercising the 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1840 IS right to vote in an election described in 1 paragraph (5). 2 ‘‘(B) INFORMATION DESCRIBED.—Infor- 3 mation is described in this subparagraph if such 4 information is regarding— 5 ‘‘(i) the time, place, or manner of 6 holding any election described in para- 7 graph (5); or 8 ‘‘(ii) the qualifications for or restric- 9 tions on voter eligibility for any such elec- 10 tion, including— 11 ‘‘(I) any criminal penalties asso- 12 ciated with voting in any such elec- 13 tion; or 14 ‘‘(II) information regarding a 15 voter’s registration status or eligi- 16 bility. 17 ‘‘(3) FALSE STATEMENTS REGARDING PUBLIC 18 ENDORSEMENTS.— 19 ‘‘(A) PROHIBITION.—No person, whether 20 acting under color of law or otherwise, shall, 21 within 60 days before an election described in 22 paragraph (5), by any means, including by 23 means of written, electronic, or telephonic com- 24 munications, communicate, or cause to be com- 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1840 IS municated, a materially false statement about 1 an endorsement, if such person— 2 ‘‘(i) knows such statement to be false; 3 and 4 ‘‘(ii) has the intent to impede or pre- 5 vent another person from exercising the 6 right to vote in an election described in 7 paragraph (5). 8 ‘‘(B) DEFINITION OF ‘MATERIALLY 9 FALSE’.—For purposes of subparagraph (A), a 10 statement about an endorsement is ‘materially 11 false’ if, with respect to an upcoming election 12 described in paragraph (5)— 13 ‘‘(i) the statement states that a spe- 14 cifically named person, political party, or 15 organization has endorsed the election of a 16 specific candidate for a Federal office de- 17 scribed in such paragraph; and 18 ‘‘(ii) such person, political party, or 19 organization has not endorsed the election 20 of such candidate. 21 ‘‘(4) HINDERING, INTERFERING WITH, OR PRE- 22 VENTING VOTING OR REGISTERING TO VOTE.—No 23 person, whether acting under color of law or other- 24 wise, shall intentionally hinder, interfere with, or 25 VerDate Sep 11 2014 04:32 Jun 11, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1840.IS S1840 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1840 IS prevent another person from voting, registering to 1 vote, or aiding another person to vote or register to 2 vote in an election described in paragraph (5). 3 ‘‘(5) ELECTION DESCRIBED.—An election de- 4 scribed in this paragraph is any general, primary, 5 run-off, or special election held solely or in part for 6 the purpose of nominating or electing a candidate 7 for the off [Text truncated for display. 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