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[Senate Report 110-191]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 411
110th Congress                                                   Report
                                 SENATE
 1st Session                                                    110-191

======================================================================

 
   DECEPTIVE PRACTICES AND VOTER INTIMIDATION PREVENTION ACT OF 2007

                                _______
                                

                October 4, 2007.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 453]

    The Committee on the Judiciary, to which was referred the 
bill (S. 453) to prohibit deceptive practices in Federal 
elections, having considered the same, reports favorably 
thereon with amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I.  Background and Purpose of the Deceptive Practices and Voter 
     Intimidation Prevention Act of 2007..............................1
 II. History of the Bill and Committee Consideration..................3
III. Section-by-Section Summary of the Bill...........................8
 IV. Cost Estimate...................................................13
  V. Regulatory Impact Evaluation....................................15
 VI. Conclusion......................................................15
VII. Additional Views of Senators Kyl, Graham, Cornyn, and Brownback.16
VIII.Changes to Existing Law Made by the Bill, as Reported...........19

    I. Background and Purpose of the Deceptive Practices and Voter 
                  Intimidation Prevention Act of 2007

    The right to vote is a fundamental right accorded to United 
States citizens, and the unimpeded exercise of this right is 
essential to the functioning of our democracy.
    It has been 137 years since the States ratified the 
Fifteenth Amendment to the United States Constitution in 1870, 
which provides that ``the right of citizens of the United 
States to vote shall not be denied or abridged by the United 
States or by any State on account of race [or] color.'' The 
Amendment also gave Congress power to enforce the amendment by 
``appropriate legislation.''
    Tragically, African Americans still had to suffer through 
nearly another century of discrimination at the hands of 
discriminatory Jim Crow laws and regulations. During the Jim 
Crow era, it was difficult, if not impossible, for African 
Americans to register to vote and cast their votes due to 
grandfather clauses, literacy tests, poll taxes, property 
requirements, harassment, violence, and other significant 
barriers.
    The 19th Amendment to the Constitution was ratified in 
1920, prohibiting the denial of the right to vote on the basis 
of sex. In 1964, the 24th Amendment to the Constitution was 
ratified, prohibiting the use of a poll tax or any other tax to 
deny a citizen the right to vote. In 1965, Congress enacted the 
Voting Rights Act, which was designed to once and for all 
prohibit discrimination against voters on the basis of race or 
color. In 1971, the 26th amendment to the Constitution was 
ratified, prohibiting the denial of the right to vote to anyone 
18 years or older simply because of their age. In 2006, 
Congress reauthorized the Voting Rights Act for another 25 
years and rejected efforts to weaken this historic law.
    Despite the constitutional and statutory protections 
provided, deceptive practices are still used today to keep 
citizens away from the polls. Deceptive practices generally 
focus on providing false information regarding the time or 
place of an election or voting eligibility requirements, in an 
effort to keep voters away from the ballot box or to prevent 
voters from voting for the candidate of their choice. These 
efforts are primarily targeted at racial minorities, new 
voters, the elderly, the disabled, low-income individuals, 
naturalized citizens, formerly-incarcerated voters, and other 
groups that are disadvantaged or have historically faced 
discrimination.
    Deceptive practices have a long history, but have received 
greater attention in recent years. For example, shortly before 
the 1990 midterm elections, 125,000 voters in North Carolina 
received postcards providing false information about voter 
eligibility and a warning about criminal penalties for voter 
fraud. Ninety-seven percent of the voters who received a 
postcard were African American.
    In 2002, fliers stating that voters could cast their 
ballots three days after the election ``if the weather is bad'' 
were distributed in New Orleans public housing complexes.
    In the 2004 presidential election, voters in Milwaukee 
received fliers from the non-existent ``Milwaukee Black Voters 
League,'' warning that voters risked imprisonment for voting 
and the loss of custody of their children if they were ever 
found guilty of any offense--even a traffic violation.
    Also in the 2004 general election, voters in Franklin 
County, Ohio, received fliers stating that due to ``confusion 
caused by unexpected heavy voter registrations'' Republicans 
should vote on Tuesday and Democrats should vote on Wednesday. 
A similar deceptive flier was distributed that year in 
Allegheny County, Pennsylvania, asking Republicans to vote on 
Tuesday and Democrats to vote on Wednesday, and concluding by 
thanking voters for ``cooperating with us in this endeavor to 
create a peaceful voting environment.''
    In the 2006 mid-term election, 14,000 Latino voters in 
Orange County, California received mailings from the California 
Coalition for Immigration Reform, warning them in Spanish that 
``if you are an immigrant, voting in a federal election is a 
crime that can result in incarceration''. The letter also 
falsely stated that the U.S. Government was ``installing a new 
computer system to verify the names of all new registered 
voters,'' and that ``[a]nti-immigration organizations can ask 
for information from this new computer system.''
    Also in 2006, registered voters in Virginia received phone 
messages falsely warning them that the ``Virginia Elections 
Commission'' had determined that they were ineligible to vote. 
Similar misinformation campaigns were reported in jurisdictions 
across the country.
    The same year, in Maryland, certain campaigns for Governor 
and United States Senator distributed fliers in predominantly 
African American neighborhoods falsely claiming that the 
candidates had been endorsed by prominent figures in the 
community, when in fact these prominent figures in the 
community had actually endorsed the opponents of the 
candidates.
    Congress has a compelling interest in protecting the 
integrity of elections, safeguarding the right of all citizens 
to vote for the candidate of their choice, and preventing any 
attempts to keep voters from exercising their right to vote. 
The Deceptive Practices and Voter Intimidation Prevention Act 
of 2007 would prohibit and punish the practice of communicating 
false information regarding: the time, place or manner of the 
election; the qualifications for or restrictions on voter 
eligibility for such election; or the explicit endorsement by 
any person or organization of a candidate's election. The bill 
would prohibit and punish deceptive practices committed with 
the intent to prevent a citizen from exercising the right to 
vote. The bill would increase monetary and criminal penalties 
for deceptive practices and voter intimidation in Federal 
elections. The bill would also require the Attorney General to 
respond to deceptive practices by providing accurate 
information to affected voters regarding the time and place of 
elections and rules on voter eligibility, in an effort to 
counter the harm caused by deceptive practices.

          II. History of the Bill and Committee Consideration

                      A. INTRODUCTION OF THE BILL

    Senator Barack Obama and Senator Charles E. Schumer 
introduced S. 453, the Deceptive Practices and Voter 
Intimidation Prevention Act of 2007, on January 31, 2007, 
joined by Senators Leahy, Cardin, Feingold, Kerry, Feinstein, 
Clinton, Boxer and Kennedy as original cosponsors. Since the 
bill's introduction, Senators Levin, Landrieu, Brown, Johnson, 
Whitehouse, McCaskill, Wyden, Durbin and Coburn have joined as 
cosponsors. The bill was referred to the Committee on the 
Judiciary.
    The House of Representatives passed companion legislation, 
H.R. 1281, by voice vote on June 25, 2007.

                       B. HEARING ON JUNE 7, 2007

    The Judiciary Committee held a hearing on June 7, 2007, 
chaired by Senator Benjamin L. Cardin and entitled, 
``Prevention of Deceptive Practices and Voter Intimidation in 
Federal Elections: S. 453.'' Senators Charles E. Schumer and 
Barack Obama testified on the first panel. Testifying on the 
second panel were Douglas F. Gansler, Attorney General for the 
State of Maryland, and Jack B. Johnson, County Executive for 
Prince George's County in the State of Maryland. Testifying on 
the third panel were Hilary O. Shelton, Director of the 
Washington Bureau of the National Association for the 
Advancement of Colored People (NAACP); John Trasvina, President 
and General Counsel of the Mexican American Legal Defense and 
Education Fund (MALDEF); Richard Briffault, Joseph Chamberlain 
Professor of Legislation at the Columbia Law School; William B. 
Canfield, Principal at Williams & Jensen, PLLC; and Peter N. 
Kirsanow, Commissioner of the United States Commission on Civil 
Rights (testifying in his personal capacity).
    The hearing focused on the need for S. 453 to combat the 
decades-old practice of communicating intentionally false 
information in an effort to disenfranchise voters and to keep 
voters away from the polls. The hearing discussed some of the 
forms of deceptive practices that have been seen in recent 
elections. In detailing some of these newer tactics, Senator 
Cardin quoted, in part, a letter dated June 4, 2007, from 
former United States Senator Charles (``Mac'') Mathias, Jr.:
          While the methods employed to deter voting differ 
        today from those in vogue years ago, the deplorable 
        objective remains the same: to help destroy the 
        integrity of the election process by suppressing 
        participation, especially by minorities. Because these 
        more modern methods of coercion and intimidation do not 
        fall neatly within the ambit of current law, 
        legislation amending Section 1971(b) is needed. I 
        believe S. 453 fills that gap admirably.
    Douglas F. Gansler, Attorney General for the State of 
Maryland, strongly endorsed S. 453 and described deceptive 
fliers distributed during the 2002 and 2006 Federal elections 
in African American neighborhoods. In 2002, a flier showing the 
wrong election date and falsely stating that parking tickets 
must be paid before voting was distributed in predominantly 
African American areas in Baltimore City, in an apparent effort 
to lower voter turnout.
    Jack B. Johnson, County Executive of Prince George's County 
in Maryland, testified in support of S. 453 and described how, 
on the date of the Federal election in 2006, fliers were 
distributed in his County that misleadingly suggested that Mr. 
Johnson had endorsed certain Republican candidates despite the 
fact that Mr. Johnson had, in fact, endorsed those candidates' 
opponents. These same fliers falsely listed certain candidates 
as part of a ``Democratic Sample Ballot.''
    Hilary O. Shelton, Director of the Washington Bureau of the 
NAACP, testified in support of the bill. He testified that:
          Unfortunately, some people are still so desperate to 
        win elections--elections that they fear they cannot 
        rightfully win--that they resort to deceptive 
        practices, misinformation and lies, to try to keep 
        legitimate voters away from the polls or to support 
        candidates whom they might not otherwise vote for. It 
        is even more unfortunate that these practices often 
        target and exploit many of the same populations that 
        have historically been excluded from the ballot box. 
        Specifically, vulnerable populations, such as racial 
        and ethnic minorities, the disabled and/or the poor and 
        senior citizens are often targeted by those 
        perpetuating these deceptive practices. . . Yet there 
        are still people and organizations in our country who 
        are so afraid of the outcome of our democratic process 
        that they must stoop to lies, duplicitous behavior, and 
        intimidation to try to keep certain segments of our 
        population and communities away from the voting poll.
    Mr. Shelton provided the following examples of deceptive 
tactics in recent elections:
          In Ingham County, Michigan, a partisan poll 
        challenger confronted every African American attempting 
        to vote that day. There were no reports of any 
        Caucasian voters even being questioned. In Orange 
        County, California, 14,000 Latino voters got letters in 
        Spanish saying it was a crime for immigrants to vote in 
        a Federal election. It did not state or even clarify 
        that immigrants who are citizens have the right to vote 
        and indeed should. In Baltimore, Maryland, misleading 
        fliers were placed on cars in predominantly African 
        American neighborhoods giving the wrong date for the 
        upcoming election day. In Virginia, registered voters 
        received recorded (robotic) calls that falsely stated 
        that the recipient of the call was registered in 
        another State and would face criminal charges if they 
        came to the polls to vote that day. It was also in 
        Virginia that voters received phone calls stating that 
        because they were such regular voters they could vote 
        this time by telephone, by simply pressing a number at 
        that time for the candidate of their choice. The call 
        ended by repeating that they had now voted and did not 
        need to go to the polls.
    Mr. Shelton testified that these cases warranted a quick 
response by the Federal Government to expose the lies told to 
voters and to provide corrected information so voters could go 
to the polls in time to have their votes counted.
    John Trasvina, President and General Counsel of MALDEF, 
testified in support of the bill because: ``voter intimidation 
and deceptive practices present serious threats to the 
integrity of the American democratic system. . . . We have 
recently witnessed an increase in voter suppression, 
intimidation and deceptive practices aimed at Latino voters. 
When a community organizes and begins to make new political 
gains, it often becomes subject to deliberate attempts to halt 
its electoral advancement by any available means, including the 
use of deceptive practices and voter intimidation.'' Mr. 
Trasvina described a letter sent to approximately 14,000 
Spanish-surname voters in Orange County, California, that 
provided false information to prospective voters, including the 
statement that immigrants who vote in Federal elections are 
committing a crime that can result in incarceration and 
possible deportation.
    Richard Briffault, Joseph Chamberlain Professor of 
Legislation at the Columbia Law School, testified in support of 
the bill that ``Congress plainly has the authority to adopt 
laws vindicating the integrity of federal elections and the 
rights of federal voters'' such as S. 453. Professor Briffault 
further testified that S. 453 ``is entirely consistent with the 
First Amendment's protection of freedom of speech. Indeed, by 
protecting voters from false statements intended to deceive 
voters or prevent voters from voting, the bill actually 
promotes the values of political participation and personal 
autonomy that are at the heart of the First Amendment.'' He 
testified that:
          The only significant constitutional issue in the 
        regulation of false election communications is the 
        requirement that the law be narrowly tailored to avoid 
        impinging on or chilling constitutionally protected 
        speech. S. 453 clearly satisfies the narrow tailoring 
        requirement. First, S. 453 is limited to the 
        communication of falsehoods that the speaker knows to 
        be false and which the speaker communicates in order to 
        prevent another person from voting. This is actually 
        significantly tighter than the constitutional test for 
        the regulation of false statements adopted by the 
        Supreme Court. . . . Innocent, negligent, and even 
        reckless mistakes are not restricted.
          Second, S. 453 is limited to a very constrained set 
        of false statements of fact--statements dealing with 
        the time, place, or manner of voting; with eligibility 
        to vote; and with explicit endorsements by persons or 
        organizations. These involve simple statements of fact 
        that do not remotely deal with matters of opinion, or 
        the issues, ideas, or political views that make up an 
        election campaign.
    Professor Briffault's statement for the hearing record sets 
out legal arguments in support of the constitutionality of S. 
453.
    William B. Canfield, Principal at Williams & Jensen, PLLC, 
testified in opposition to the bill. Mr. Canfield stated his 
view that S. 453, as introduced, was overly broad and 
unnecessary. Mr. Canfield also objected to the bill's provision 
of a private right of action for aggrieved individuals.
    Peter N. Kirsanow, a member of the United States Commission 
on Civil Rights and the National Labor Relations Board, 
testified in his personal capacity. Mr. Kirsanow suggested that 
the Committee should expand S. 453 to cover the issues of 
fraudulent registration, multiple registration, and compromised 
absentee ballots. During the course of the hearing, in response 
to a question from Senator Orrin G. Hatch, Professor Briffault 
clarified that fraudulent registration and fraudulent voting 
are already criminalized.
    The People for the American Way and the People for the 
American Way Foundation submitted a statement for the record in 
support of the legislation. The statement elaborated on the 
need for the bill:
          Federal law may not currently criminalize all the 
        deceptive practices we saw in the 2006 elections, 
        including disinformation campaigns and harassing 
        robocalls. Such practices try to deceive voters into 
        changing their votes, or voting on the wrong day, or by 
        sending them to the wrong polling place. Some schemes 
        attempt to convince citizens that voting will be 
        difficult or even dangerous, or simply annoy them so 
        much that they stay home from the polls in disgust at 
        the whole process. Americans deserve elections that are 
        clean and fair. We may not be able to stop dirty tricks 
        in campaigns, but we can make it harder for them to 
        succeed--and we can make the consequences very serious 
        for those who carry them out.
    Barbara Arnwine, Executive Director of the Lawyers' 
Committee for Civil Rights Under Law, submitted a statement for 
the record detailing the lengthy history of deceptive practices 
undermining our democracy's electoral integrity. Her testimony 
included specific examples of deceptive practices and stated 
that ``across the country, primarily in traditionally 
disenfranchised communities, voters are deliberately 
misinformed about the mechanics of elections.'' Ms. Arnwine 
expressed her organization's support for the bill:
          ``This crucial piece of legislation targets the 
        necessary problems in the election system by striking a 
        necessary balance between the rights of all Americans 
        to cast an effective ballot and our core First 
        Amendment constitutional rights.'' Ms. Arnwine noted 
        that the Lawyers' Committee has joined with the NAACP, 
        the National Bar Association, and the People for the 
        American Way Foundation to form the Election Protection 
        Coalition, which has systematically collected reports 
        of deceptive practices or voter intimidation in Federal 
        elections.
    Patricia M. Roberts, President of Citizens Against Un-
American Voter Intimidation, submitted a statement for the 
record detailing the use of deceptive practices and voter 
intimidation methods in Federal elections.

                       C. COMMITTEE CONSIDERATION

    The bill was considered by the Committee on the Judiciary 
on September 6, 2007. During Committee consideration, Senators 
Durbin and Coburn requested to be added as cosponsors of the 
measure.
    Senator Schumer introduced an amendment in the nature of a 
substitute. In addition to minor changes intended to clarify 
the scope of the bill and the reporting requirements under the 
bill, the substitute amendment reflects numerous substantive 
changes proposed by members of the Committee, the Department of 
Justice, and civil rights advocates.
    Specifically, whereas the original bill provided civil and 
criminal penalties for the communication of false information 
regarding political party affiliation, this type of false 
information is not covered in the substitute amendment. The 
substitute amendment also eliminates the original bill's 
private right of action for any aggrieved individual to enforce 
the bill. Instead, the substitute amendment grants aggrieved 
individuals the right to seek an order in Federal court 
requiring the Attorney General to take corrective action as 
provided in the bill, if the Attorney General fails to take 
such corrective action within 72 hours (or sooner if necessary 
to ensure timely corrective action before an election) after 
receiving information that gives reasonable cause to believe a 
violation has occurred.
    Finally, the substitute amendment establishes several 
safeguards in the section of the bill requiring the Attorney 
General to counteract deceptive information by distributing 
corrective information. The provision of corrective information 
shall be strictly limited to the information necessary, shall 
occur only if the false information distributed could 
materially affect any individual's ability to vote, and shall 
be limited to information regarding the time and place of an 
election or regarding voter eligibility rules.
    The substitute amendment, offered by Senator Schumer, was 
accepted by a voice vote.
    Senator Specter offered an amendment to expand the findings 
in the bill to include examples of voter fraud. This amendment 
was rejected on a roll call vote. The vote record is as 
follows:
    Tally: 9 Yes, 10 No.
    Yeas (9): Specter (R-PA), Hatch (R-UT), Grassley (R-IA), 
Kyl (R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), 
Brownback (R-KS), Coburn (R-OK).
    Nays (10): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl 
(D-WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY), 
Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI).
    Senator Hatch offered an amendment to provide a definition 
for the term ``right to vote.'' This amendment was rejected on 
a roll call vote. The vote record is as follows:
    Tally: 9 Yes, 10 No.
    Yeas (9): Specter (R-PA), Hatch (R-UT), Grassley (R-IA), 
Kyl (R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), 
Brownback (R-KS), Coburn (R-OK).
    Nays (10): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl 
(D-WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY), 
Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI).
    Senator Hatch offered an amendment to expand the bill to 
include the communication of false information with the intent 
to facilitate voting by a person who is ineligible to vote. 
This amendment was rejected on a roll call vote. The vote 
record is as follows:
    Tally: 9 Yes, 10 No.
    Yeas (9): Specter (R-PA), Hatch (R-UT), Grassley (R-IA), 
Kyl (R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), 
Brownback (R-KS), Coburn (R-OK).
    Nays (10): Leahy (D-VT), Kennedy (D-MA), Biden (D-DE), Kohl 
(D-WI), Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY), 
Durbin (D-IL), Cardin (D-MD), Whitehouse (D-RI).
    The Committee then voted to report the Deceptive Practices 
and Voter Intimidation Prevention Act of 2007, with an 
amendment in the nature of a substitute, favorably to the 
Senate. The Committee proceeded by voice vote.

        III. Section-by-Section Summary of the Bill, as Reported

Section 1. Short title

    Title: ``Deceptive Practices and Voter Intimidation 
Prevention Act of 2007''.

Section 2. Findings

    This section has 14 findings related to the fundamental 
right to vote; historical efforts to suppress votes, including 
deceptive practices and intimidation; the Federal Government's 
interest in protecting the right to vote; and First Amendment 
jurisprudence recognizing that false statements do not 
necessarily enjoy constitutional protection.

Section 3. Prohibition on deceptive practices in federal elections

    This section provides a civil penalty for persons who, with 
the intent to prevent another person from exercising the right 
to vote or from voting for the candidate of the voter's choice, 
knowingly communicate within 60 days of a Federal election 
information which they know to be false regarding: (1) the 
time, place or manner of the election; (2) the qualifications 
for or restrictions on voter eligibility for such election, 
including criminal penalties associated with voting or a 
voter's registration status or eligibility; or (3) the explicit 
endorsement by any person or organization of a candidate for an 
upcoming election.
    The Committee contemplates that a suspect or defendant's 
voluntary and timely communication of correct information to 
voters affected by an initial communication of false 
information may be a relevant factor in determining whether the 
suspect or defendant acted with the intent to prevent another 
person from exercising the right to vote or from voting for the 
candidate of the voter's choice.
    The Committee contemplates that enforcement by the 
Department of Justice of the sections prohibiting false 
explicit endorsements be focused on false explicit endorsements 
purporting to be from public officials, community leaders, 
organizations, or persons well known in the voting precinct in 
which the deceptive communications occur.
    This section also includes criminal penalties for the 
provision of false information as described above.
    The deceptive practices provision applies to any general, 
primary, run-off, or special election held solely or in part 
for the purposes of electing the office of President, Vice 
President, presidential elector, Member of the Senate, Member 
of the House of Representatives, or Delegate or Commissioner 
from a territory or possession.
    This section provides penalties of not more than a $100,000 
fine or five years imprisonment, or both.
    This section includes an attempt provision.
    This section amends the current voter intimidation statute 
so that it clearly applies in any general, primary, run-off, or 
special election held solely or in part for the purposes of 
electing the office of President, Vice President, presidential 
elector, Member of the Senate, Member of the House of 
Representatives, or Delegate or Commissioner from a territory 
or possession.
    This section increases the criminal penalty for voter 
intimidation from one year to five years. The Committee 
believes that the existing penalty for voter intimidation does 
not adequately reflect the seriousness of this crime. Noting 
that voter intimidation and deceptive practices are different 
means of attempting to keep voters from reaching the polls and 
casting ballots for the candidate of their choice, the 
Committee is of the view that voter intimidation and deceptive 
election practices are crimes of equal seriousness.
    This section also requires the United States Sentencing 
Commission to review and, if necessary, amend the Federal 
Sentencing Guidelines for persons convicted under this section.

Section 4. Reporting of false election information

    Section 4(a) provides that individuals who have received or 
have knowledge of deceptive practices prohibited by Section 3 
can report such information to the Attorney General.
    Section 4(b) states that if a report provides a reasonable 
basis to find a violation of the law, the Attorney General 
shall pursue ``any appropriate'' criminal prosecution or civil 
action.\1\ This section preserves the Attorney General's 
discretion in assessing whether to undertake a criminal or 
civil response to a possible legal violation as well as what 
response is appropriate.
---------------------------------------------------------------------------
    \1\Contrary to the claims made in the Additional Views of Senators 
Kyl, Graham, Cornyn, and Brownback, Section 4(b) of the bill requires 
the Attorney General to pursue only any ``appropriate'' action if a 
citizen's report of false election information provides a ``reasonable 
basis'' to find a violation of law. The determination of what, if 
anything, constitutes an ``appropriate criminal prosecution or civil 
action'' remains within the Attorney General's discretion. To the 
extent that this bill affects prosecutorial choices, the Committee 
notes that Congress has frequently legislated in ways that affect 
prosecutorial discretion. See 28 U.S.C. Sec. 530(B) (2000) (restricting 
Federal prosecutors' discretion by subjecting them to state ethical 
rules); Pub. L. No. 105-119, Sec. 617, 111 Stat. 2440, 2519 (1997) 
(penalizing certain prosecutorial actions by allowing courts to award 
attorneys' fees to victims of vexatious, frivolous or bad faith 
prosecutions); 18 U.S.C. Sec. 6002 (2000) (limiting the extent to which 
congressional testimony can be used by prosecutors against the witness 
in a criminal case); Pub. L. No. 95-521, 92 Stat. 1824 (1978) (limiting 
prosecutorial discretion to not bring charges by requiring that the 
Attorney General conduct a preliminary investigation of persons covered 
by the statute); 28 U.S.C. Sec. 591 (Supp. IV, 2001-2005) (requiring 
the Attorney General to conduct an investigation whenever he has 
received ``sufficient information'' that a high-ranking US official may 
have violated certain Federal criminal laws).
---------------------------------------------------------------------------
    Section 4(b) also specifies that the Attorney General shall 
refer to the Civil Rights Division only those matters that 
would otherwise fall under the Civil Rights Division's 
jurisdiction.\2\ Thus, the Committee intends that the Attorney 
General will assign enforcement of this legislation in a way 
that does not substantially add to the workload of the Civil 
Rights Division and does not limit that Division's resources 
available for enforcing other important voting rights laws, 
such as the Voting Rights Act. Rather, the Committee expects 
that the legislation would primarily be enforced by other 
Divisions of the Department of Justice. The Attorney General's 
role in defining the jurisdiction of the Divisions of the 
Department of Justice is preserved under this bill, because a 
referral to the Civil Rights Division under this bill is 
determined by how that Division's jurisdiction is otherwise 
defined, either by a preexisting statute or by the Attorney 
General.
---------------------------------------------------------------------------
    \2\Senators Kyl, Graham, Cornyn, and Brownback mischaracterize the 
effect of Section 4(b) in their Additional Views. Section 4(b) does not 
require that all matters under this bill be referred to the Civil 
Rights Division. On the contrary, the bill limits the referrals to the 
Civil Rights Division only to cases that are otherwise under that 
Division's jurisdiction, such as cases that involve discrimination or 
intimidation on the basis of race. In this way, the bill provides for 
the preservation of the existing arrangement within the Department of 
Justice, under which the Criminal Division handles most criminal 
matters related to voting, and seeks to ensure that the Civil Rights 
Division will continue to maintain its primary focus on voting matters 
involving unlawful discrimination.
---------------------------------------------------------------------------
    This section specifies that no investigation or legal 
action may begin until after the election, unless the Attorney 
General reasonably decides that investigation or legal action 
before an election will not inhibit voting and is necessary 
because delaying investigation until after the election will 
substantially harm the government's ability to enforce the bill 
(or, as provided by Section 5, is necessary to determine the 
need for or scope of corrective action). Due to the sensitive 
nature of any investigation or punitive action under the 
criminal or civil provisions of the bill, the Committee intends 
to clarify that the Attorney General's actions under the bill 
should be guided by a presumption that any investigation or 
action prior to an election is discouraged.

Section 5. Corrective action

    Whereas earlier sections of the bill provide for civil and 
criminal enforcement against violators, Section 5 creates a 
mechanism for affirmatively correcting false information in 
order to assist affected voters in exercising their right to 
vote.\3\ Section 5(a) requires the Attorney General to 
determine whether false information has been disseminated in 
violation of Section 3.
---------------------------------------------------------------------------
    \3\It is not unusual for Congress to require the Department of 
Justice to perform a wide range of non-prosecutorial functions, 
including election monitoring to ensure voting rights are protected, 
mediation and conflict resolution through the Community Relations 
Service of the Civil Rights Division, the collection and analysis of 
data to track and inform public policy choices, and compliance with 
ethics and employment laws, among others.
---------------------------------------------------------------------------
    Under Section 5(a), if the Attorney General determines that 
the information communicated reasonably falls within the 
parameters of the prohibited information, the Attorney General 
shall undertake all necessary efforts to provide correct 
information to all voters who have been affected by the false 
information.\4\ The corrective action requirement in this 
section of the bill poses no threat to prosecutorial discretion 
because the required action under this section does not involve 
prosecution and is limited to correcting false information in 
order to enable the effective exercise of the fundamental right 
to vote. The term ``all effective measures'' is intended to 
encompass any means of communication effective in reaching 
voters who were affected by a prior communication of false 
information. In many instances, the Department of Justice 
therefore may find it most effective to communicate corrective 
information to voters in the same format and to the same extent 
as false information was communicated. Moreover, because the 
goal of this section is to aid voters in overcoming any effects 
of false information, the Committee intends that the Attorney 
General should take corrective action under this section even 
if the perpetrator or suspected perpetrator has already made a 
voluntary effort to provide correct information following the 
initial communication of false information.
---------------------------------------------------------------------------
    \4\Contrary to the misconceptions advanced in the Additional Views, 
Section 5 does not require any civil or criminal action but rather 
directs the Attorney General to take non-prosecutorial corrective 
action in a limited set of cases. Providing the public with correct 
information so that a fundamental right can be exercised is clearly 
distinct from the traditional prosecutorial duties of charging and 
prosecuting a crime.
---------------------------------------------------------------------------
    Section 5(a) further provides that the Attorney General's 
corrective action shall only address matters of time of voting, 
place of voting, qualifications for voter eligibility, or 
restrictions on voter eligibility. This list of topics for 
corrective communications is intended to be exhaustive. The 
Committee recognizes that the bill excludes certain false 
information from the corrective action section that falls 
within the criminal and civil prohibitions in the bill. The 
Committee thereby seeks to minimize both the burden on the 
Department of Justice and the risk that corrective action may 
influence the outcome of an election (beyond the impact of 
counteracting the false information that was communicated). The 
Committee intends that the requirement to distribute corrective 
information regarding ``time and place'' shall include issues 
such as absentee voting, vote-by-mail, and telephonic voting. 
Information on voter eligibility shall, at a minimum, be 
interpreted to include information on the kinds of 
identification that must be presented in order to vote or 
register to vote, information on the use and availability of 
absentee ballots, and information on whether and to what extent 
a person's criminal history or immigration status affects his 
or her eligibility to vote.
    This section specifies, and the Committee intends, that the 
correct information distributed by the Attorney General should 
be limited to the information necessary to counteract the false 
information that was communicated. The overbroad or unnecessary 
distribution of information by the Department of Justice would 
create the appearance that the Department is unduly involved in 
political matters and presents a risk of inadvertently 
discouraging voting or otherwise influencing the outcome of an 
election. Thus, it is the Committee's view that corrective 
action should be limited to information enumerated in this 
section and be tailored as narrowly as possible in order to 
respond to the nature and scope of the original distribution of 
false information. In particular, information distributed by 
the Attorney General pursuant to this section should not 
include the suspected perpetrator's identity, or any other 
information that might influence the outcome of an election 
(beyond the impact of counteracting the false information that 
was communicated).
    This section includes a materiality requirement so that the 
Attorney General need only take corrective action if there is 
reasonable basis to believe that false information as described 
in the bill has been communicated and such communication might 
materially hinder any citizen's meaningful exercise of the 
right to vote. False information materially hinders the 
meaningful exercise of the right to vote if there is a 
significant likelihood that such information will negatively 
affect voters' opportunity to vote for the candidates of their 
choice or to access to the polls at the required place and 
time, cast their votes, and have their votes counted in a 
Federal election or primary.
    The Attorney General may not undertake any investigation 
related to a report of false information before the election to 
which the false information pertains, unless the Attorney 
General reasonably believes that such investigation will not 
inhibit voting and is necessary to determine the need for or 
scope of corrective action (or, as provided by Section 4, is 
necessary because delaying investigation until after the 
election will substantially harm the government's ability to 
enforce the bill). As in the civil and criminal sections of the 
bill, due to the sensitive nature of any such investigation, 
the Committee intends to clarify that the Attorney General's 
actions under the bill should be guided by a presumption that 
any investigation or action prior to an election is 
discouraged.
    Section 5(b) states that if an individual has provided the 
Attorney General with information showing reasonable cause to 
believe a violation of this law has occurred, and the Attorney 
General fails to take corrective action within 72 hours (or 
sooner if necessary to ensure timely corrective action before 
an election), this section provides the individual with the 
right to apply to a U.S. District Court for an order requiring 
the Attorney General to take timely corrective action. The 
Committee believes that the time limit in this section is 
appropriate given that the right to vote is fundamental and 
that deceptive practices are frequently perpetrated in the days 
and hours immediately preceding an election. The Committee 
notes that Congress has elsewhere empowered citizens to seek 
judicial review of unreasonable executive inaction. For 
example, Congress may provide for ``citizen suits'' against 
administrative or other officials who fail to enforce laws, and 
the Administrative Procedure Act permits a person aggrieved by 
agency action to request that a reviewing court ``compel agency 
action unlawfully withheld or unreasonably delayed.''\5\
---------------------------------------------------------------------------
    \5\5 U.S.C.Sec. 706(1) (2007). The U.S. Supreme Court in Heckler v. 
Chaney, 470 U.S. 821 (1985), held that an agency's decision not to 
enforce a statute is presumptively unreviewable but stated that 
Congress may overcome this presumption if it supplies guidelines that 
circumscribe an agency's discretion in exercising its enforcement 
powers. Consistent with the principles set out in Heckler, this bill 
provides for expedited judicial review to determine whether a 
Department of Justice decision not to take corrective action accords 
with the standards provided in Section 5(b) of the bill.
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    The Attorney General must also provide the relevant 
committees of Congress with a report regarding the procedures 
and standards intended to be used to provide the corrective 
action required by this section by January 1 of each year in 
which there is a Federal election. If the Attorney General 
makes any changes to these procedures and standards, the 
Attorney General must promptly notify the relevant committees 
of Congress of such changes.
    The Attorney General should consult with the Election 
Assistance Commission, civil rights organizations, voting 
rights groups, and State and local election officials in 
developing these procedures and standards.
    This section requires the Attorney General to work with the 
Federal Communications Commission and the Election Assistance 
Commission to study the feasibility of using public service 
announcements, the emergency alert system or other forms of 
public broadcast to provide the corrective information required 
by this section. This feasibility report should be completed 
within 90 days of enactment.
    This section authorizes such sums as may be necessary to 
carry out this section.

Section 6. Reports to Congress

    This section requires the Attorney General to report to 
Congress not later than 90 days after each Federal general 
election the allegations of false information received pursuant 
to this section, as well as detailed information on the types 
of reports received and the corrective actions taken, if any. 
The report must provide information regarding any primary or 
run-off election that has occurred since the prior report to 
Congress. The Attorney General may withhold from the report any 
non-public information that the Attorney General reasonably 
determines would infringe on the rights of a criminal suspect 
or defendant or would compromise an on-going investigation or 
prosecution.

Section 7. Severability

    This section provides that if any provision of this Act is 
found unconstitutional, the remainder of the Act remains in 
force.

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 453, 
the following estimate prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:

                                                September 21, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 453, the Deceptive 
Practices and Voter Intimidation Prevention Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 453--Deceptive Practice and Voter Intimidation Prevention Act of 
        2007

    CBO estimates that implementing S. 453 would cost less than 
$500,000 annually from appropriated funds. Enacting the bill 
could affect direct spending and revenues, but CBO estimates 
that any such effects would not be significant.
    Section 4 of the Unfunded Mandates Reform Act excludes from 
the application of that act any legislative provisions that 
enforce the Constitutional rights of individuals. CBO has 
determined that S. 453 would fall within that exclusion because 
it would protect voting rights. Therefore, CBO has not reviewed 
the bill for mandates.
    S. 453 would establish a new crime for attempting to 
deceive voters in Federal elections and would require the 
Department of Justice to prepare reports relating to 
implementation of the bill's provisions. Because the 
legislation would establish a new offense, the government would 
be able to pursue cases that it otherwise would not be able to 
prosecute. CBO expects that S. 453 would apply to a relatively 
small number of offenders, however, so any increase in costs 
for law enforcement, court proceedings, or prison operations 
would not be significant. We estimate that it would cost less 
than $500,000 annually to implement this legislation, including 
costs to prepare the reports required by the bill. Any such 
costs would be subject to the availability of appropriated 
funds.
    Because those prosecuted and convicted under S. 453 could 
be subject to criminal fines, the Federal Government might 
collect additional fines if the legislation is enacted. 
Criminal fines are recorded as revenues, then deposited in the 
Crime Victims Fund and later spent. CBO expects that any 
additional revenues and direct spending would not be 
significant because of the small number of cases likely to be 
affected.
    On April 11, 2007, CBO transmitted a cost estimate for H.R. 
1281, the Deceptive Practices and Voter Intimidation Prevention 
Act of 2007, as ordered reported by the House Committee on the 
Judiciary on March 29, 2007. The bills are similar and the cost 
estimates are identical.
    The CBO staff contact for this estimate is Mark Grabowicz. 
This estimate was approved by Peter H. Fontaine, Assistant 
Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 453.

                             VI. Conclusion

    Enactment of the Deceptive Practices and Voter Intimidation 
Prevention Act of 2007, S. 453, addresses the compelling 
national interest in ensuring the integrity of Federal 
elections by protecting voting rights of vulnerable members of 
the electorate, including citizens residing in minority and 
low-income communities. The legislation provides for civil and 
criminal penalties against persons who attempt to deceive 
citizens in order to prevent them from exercising the right to 
vote or from voting for the candidate of their choice. 
Deceptive communications found materially to hinder any 
citizen's right to vote require that the Attorney General 
undertake effective corrective action to counteract the false 
information that was communicated.

  VII. ADDITIONAL VIEWS OF SENATORS KYL, GRAHAM, CORNYN, AND BROWNBACK

    It is our understanding that the Justice Department, though 
it has not yet issued an official Views Letter for this bill, 
will eventually endorse its overall purpose of proscribing 
certain election-related deceptive conduct. Although much of 
the conduct prohibited by this bill already arguably is 
proscribed by current statutes such as 18 U.S.C. Sec. 241, this 
bill will provide clear and specific authority to prosecute 
efforts to deceive voters about the time and place and 
qualifications for voting. We, too, support the overall purpose 
of this bill.
    We also expect, however, that the Justice Department will 
vigorously object to several provisions of this bill, and we do 
not need to read the Department's forthcoming Views Letter to 
know why. Several of the bill's restrictions on prosecutorial 
or other executive discretion are utterly unprecedented and 
would be a clear violation of the separation of powers. 
Congress simply cannot command the executive (or authorize the 
courts to command the executive) to carry out functions that 
are plainly within the realm of discretionary executive 
decisionmaking authority. The tasks that this bill commands the 
Justice Department to carry out are not ministerial in nature. 
These tasks are in the heartland of those decisions that are 
made on the basis of factors that only the executive can 
evaluate, such as the availability of enforcement resources and 
the prioritization of the use of those resources. Congress has 
never before ordered the executive branch bring an enforcement 
action in every single case that falls within a statute's 
proscriptions, or authorized the federal courts to issue such 
orders. It should not begin doing so in this bill.
    The offending provisions of this bill are sections 4 and 5, 
which would require the Attorney General to refer cases for 
prosecution and take ``corrective action'' to rebut false 
voting information that has been disseminated to voters. 
Section 4(b) requires the Attorney General to refer a case to 
the Civil Rights Division for prosecution if he finds that 
there is a ``reasonable basis'' for concluding that the law has 
been broken. Section 5(b) authorizes private litigants to bring 
an action in federal court seeking an order that the Attorney 
General take ``corrective action'' rebutting false election 
information if the Attorney General does not act on a complaint 
within 72 hours after it is submitted to the Justice 
Department.
    Both of these ``enforcement'' provisions are severe 
intrusions on prosecutorial discretion. The first strips from 
the Attorney General the authority to decide for himself 
whether a case is worth pursuing--if he concludes that there is 
a ``reasonable basis'' for a complaint, he must refer the case 
to the Civil Rights Division. The second provision effectively 
delegates to a federal district judge the decision whether a 
citizen complaint about allegedly false voting information 
merits ``corrective action'' by the Attorney General.
    Typically when committee reports such as this one are first 
circulated as a draft in the committee, Senators are given a 
few extra days to submit additional or minority views. After 
those additional views are submitted, proponents of the bill 
usually will amend the committee report--often through the 
addition of footnotes--to respond to those additional views. In 
this case, we are curious to see whether the proponents of this 
bill will be able to identify any precedent whatsoever for the 
intrusions on executive discretion in sections 4(b) and 5(b) of 
this bill. We doubt that the final committee report will be 
able to identify even one statute in which Congress has ordered 
the Justice Department to bring an enforcement action in every 
single case that falls within the statute's proscriptions, or 
in which it has delegated enforcement decisionmaking authority 
to the federal courts.
    The executive branch needs to be allowed to decide whether 
a particular infraction of a statute merits enforcement action. 
Consider the practical implications of restricting such 
discretion in the context of this bill. The Civil Rights 
Division has a limited number of lawyers, and those lawyers are 
charged with enforcing a large number of other statutes. If a 
clear but minor violation of this bill's proscriptions has 
occurred--for example, incorrect information about poll-opening 
times has been issued, but did not reach many voters--should a 
Department attorney necessarily abandon every other case that 
he is assigned to in order to prosecute that incident? What if 
the facts of the case are not so clear, and the attorney is not 
certain that he will obtain a conviction? Should the attorney 
nevertheless be forced to prosecute the case? And should a 
judge be allowed to decide on the Justice Department's behalf 
whether ``corrective action'' should be taken?
    Advocates of these provisions might also consider what 
precedent they are setting in the event that sections 4 and 5 
of this bill are enacted into law and are upheld by the courts. 
How do they feel about a bill that would require the Justice 
Department to prosecute every single child-pornography case 
that is brought to its attention? Or every illegal-entry 
immigration case? What about cases of providing material 
support to terrorism?
    The impossibility of extending such mandates across the 
criminal statutes should be apparent to everyone. Congress does 
not decide how enforcement resources are used. It is the 
President, his appointees, and career executive employees who 
make those decisions.
    Several other provisions of this bill are problematic as 
well. The requirement that the Justice Department prosecute 
false candidate endorsements is destined to embroil the 
Department in political controversies and to subject it to 
accusations of political favoritism. Campaign speech and 
campaign tactics have traditionally remained outside the 
purview of the criminal laws. Nor would a campaign to punish 
``false'' statements about candidates be a limited venture: we 
doubt that there are very many members of the Senate or House 
who do not believe that during some election someone said 
something about them that is false. We think that it is 
unlikely that the Department will be enthusiastic about this 
committee's invitation to jump down this rabbit hole.
    We are also curious to see what the lawyers who will be 
charged with enforcing this bill think about some of the 
language that it employs. It is unclear to us, for example, how 
those lawyers are supposed to prove that a defendant intended 
to prevent a voter ``from voting for the candidate of such 
person's choice.'' It is one thing to prove what a defendant 
did and intended. It is another to prove what the victim of the 
offense (who likely will exist only as a hypothetical voter) 
would have intended to do absent the deceiving information. How 
is a federal prosecutor (or judge or jury) supposed to know who 
is the real candidate of that voter's choice? Does the jury 
employ a Marxian analysis and subtract the voter's false 
consciousness to determine who the voter really wanted to vote 
for? How can a court ever say that a voter's choice was anyone 
other than the candidate for whom the voter actually voted? 
None of us would want to be the first lawyer to prosecute one 
of these cases, and we hope that the Justice Department will 
suggest a more elegant way of defining this offense.
    Again, we note that we support the overall purpose of this 
bill to expressly prohibit particular deceptive election-
related practices. However, some of the parts of this bill 
clearly require adjustment, and we think that it is inevitable 
that the bill would benefit from the views of the Justice 
Department attorneys who practice in this field.
                                   Jon Kyl.
                                   Lindsey Graham.
                                   John Cornyn.
                                   Sam Brownback.
      VIII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 453, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

TITLE 18, UNITED STATES CODE

           *       *       *       *       *       *       *

CHAPTER 29--ELECTIONS AND POLITICAL ACTIVITIES

           *       *       *       *       *       *       *

Sec. 594. Intimidation of Voters

    [Whoever] (a) Intimidation.--Whoever intimidates, 
threatens, coerces, or attempts to intimidate, threaten, or 
coerce, any other person by any means, including by means of 
written, electronic or telephonic communications, for the 
purpose of interfering with the right of such other person to 
vote or to vote as he may choose, or of causing such other 
person to vote for, or not to vote for, any candidate for the 
office of President, Vice President, Presidential elector, 
Member of the Senate, Member of the House of Representatives, 
Delegate from the District of Columbia, or Resident 
Commissioner, [at any election held solely or in part for the 
purpose of electing such candidate] at any general, primary, 
run-off or special election held solely or in part for the 
purpose of electing such a candidate, shall be fined under this 
title or imprisoned not more than [one year] 5 years, or both.
    (b) Deceptive Acts.--
          (1) Prohibition.--
                  (A) In general.--It shall be unlawful for any 
                person, within 60 days before an election 
                described in subparagraph (B), to communicate 
                or cause to be communicated information 
                described in subparagraph (C), or produce 
                information described in subparagraph (C) with 
                the intent that such information be 
                communicated, if such person--
                          ``(i) knows such information to be 
                        false; and
                          ``(ii) has the intent to prevent 
                        another person from exercising the 
                        right to vote or from voting for the 
                        candidate of such other person's choice 
                        in an election described in 
                        subparagraph (B).
                  (B) Election described.--An election 
                described in this subparagraph is any general, 
                primary, run-off, or special election held 
                solely or in part for the purpose of electing a 
                candidate for the office of President, Vice 
                President, presidential elector, Member of the 
                Senate, Member of the House of Representatives, 
                or Delegate or Commissioner from a territory or 
                possession.
                  (C) Information described.--Information is 
                described in this subparagraph if such 
                information is regarding--
                          (i) the time, place, or manner of any 
                        election described in subparagraph (B);
                          (ii) the qualifications for or 
                        restrictions on voter eligibility for 
                        any such election, including--
                                  (I) any criminal penalties 
                                associated with voting in any 
                                such election; or
                                  (II) information regarding a 
                                voter's registration status or 
                                eligibility; or
                          (iii) the explicit endorsement by any 
                        person or organization for the upcoming 
                        election of a candidate to any office 
                        described in subparagraph (B).
          (2) Penalty.--Any person who violates paragraph (1) 
        shall be fined not more than $100,000, imprisoned not 
        more than 5 years, or both.
    (c) Attempt.--
          (1) Attempt.--Any person who attempts to commit any 
        offense described in subsection (a) or (b) shall be 
        subject to the same penalties as those prescribed for 
        the offense that the person attempted to commit.

TITLE 42, UNITED STATES CODE

           *       *       *       *       *       *       *

CHAPTER 20--ELECTIVE FRANCHISE

           *       *       *       *       *       *       *

Sec. 1971. Voting Rights

    (a) * * *

           *       *       *       *       *       *       *

    (b) Intimidation, Threats, or Coercion.--
          [No person] (1) No person, whether acting under color 
        of law or otherwise, shall intimidate, threaten, 
        coerce, or attempt to intimidate, threaten, or coerce 
        any other person for the purpose of interfering with 
        the right of such other person to vote or to vote as he 
        may choose, or of causing such other person to vote 
        for, or not to vote for, any candidate for the office 
        of President, Vice President, presidential elector, 
        Member of the Senate, or Member of the House of 
        Representatives, Delegates or Commissioners from the 
        Territories or possessions, at any general, special, or 
        primary election held solely or in part for the purpose 
        of selecting or electing any such candidate.
          (2)(A) No person, whether acting under color of law 
        or otherwise, shall, within 60 days before an election 
        described in subparagraph (B), communicate or cause to 
        be communicated information described in subparagraph 
        (C), or produce information described in subparagraph 
        (C) with the intent that such information be 
        communicated, if such person--
                  (i) knows such information to be false; and
                  (ii) has the intent to prevent another person 
                from exercising the right to vote or from 
                voting for the candidate of such other person's 
                choice in an election described in subparagraph 
                (B).
          (B) An election described in this subparagraph is any 
        general, primary, run-off, or special election held 
        solely or in part for the purpose of electing a 
        candidate for the office of President, Vice President, 
        presidential elector, Member of the Senate, Member of 
        the House of Representatives, or Delegate or 
        Commissioner from a territory or possession.
          (C) Information is described in this subparagraph if 
        such information is regarding--
                  (i) the time, place, or manner of any 
                election described in subparagraph (B);
                  (ii) the qualifications for or restrictions 
                on voter eligibility for any such election, 
                including--
                          (I) any criminal penalties associated 
                        with voting in any such election; or
                          (II) information regarding a voter's 
                        registration status or eligibility; or
                  (iii) the explicit endorsement by any person 
                or organization for the upcoming election of a 
                candidate to any office described in 
                subparagraph (B).

                                  
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