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Week Ending June 29, 2006

H.R.1281 To amend title 18, United States Code, to prohibit certain deceptive practices in Federal elections, and for other purposes.

The bill aims to prohibit schemes that suppress a citizen’s right to vote by making such schemes a violation of Federal law and establishing penalties up to a $250,000 fine and 5 years imprisonment or both.

It is established that whoever intimidates, threatens, coerces or attempts to intimidate, threaten or coerce any other person for the purpose of interfering with the right of such other person to vote or vote as he may choose, or of causing such other person to vote for, or not vote for, any candidate for the office of President, Vice President, Presidential elector, Senator, Representative, Delegate or resident Commissioner at any election held solely or in part for the purpose of electing the candidate shall be fined or imprisoned not more than five years or both. General, primary, run-off or special elections are included.

Specifically the effort to influence will include false or misleading information about the time, place, manner of conducting the elections, the qualifications for or restrictions on voter eligibility including criminal penalties, registration status or eligibility. Closed primary elections are also governed by prohibitions on misleading information about explicit endorsement of a person or organization of a candidate for any office.

In a closed primary election misleading information about the political party affiliation of any candidate for office is prohibited.

Examples

The bill report included as examples, flyers stating that voters could cast their votes three days after the election if the weather is bad (New Orleans), letters informing voters that their registrations were illegal and that they would be unable to vote (Ohio), voters would be found ineligible to vote due to traffic violations, family member criminal records or for voting in previous elections during the year (Milwaulkee). Such tactics, the report noted, continue to grow and seem to target traditionally disenfranchised voters and include phone calls offering the voter to vote right then over the phone without having to go to the polls. (Virginia)

Immigrants having earned the right to vote were told in letters that it was illegal for them to vote and could be incarcerated (California).

Voters were mislead when told that candidates were endorsed by the opponent’s party and by favored ethnic groups. (Maryland)

Committee amendments

In committee, an amendment that would have qualified an effort to prevent exercising voting rights by requiring the effort to have ‘effectively’ prevented that right to exercise the vote was defeated.

An amendment regarding non-citizen voting was ruled non-germane and a motion to table that amendment was agreed to.

Reporting a violation

The bill provides that any person may report to the Attorney general any violations or possible violation. The AG, immediately after receiving a report, shall consider and review the report and if it is determined to have a reasonable basis to find that a violation has occurred, the AG will undertake all effective measures necessary to provide correct information to voters affected by the false information, refer an civil rights-related matters to the appropriate division in the Department of Justice and refer the matter to the appropriate Federal and State authorities for criminal prosecution or civil action after the elections.

The AG will promulgate regulations regarding the methods and means of corrective actions to be taken and will promulgate them in consultation with the Election Assistance Commission, civil rights organizations, voting rights groups, State and local election officials, voter protection groups and other interested community organizations.

The AG will consult with the Federal Elections Commission and the Election Assistance Commission to conduct a study on the feasibility of providing the corrective information through public service announcements, emergency alert system or other means of public broadcast. The AG will make public through the Internet, radio, TV and newspaper advertisements information on the responsibilities, contact information and complaint procedures applicable.

A Voting Integrity Task Force will be formed to carry out some requirements. The makeup of the Task Force is not defined in the bill. The AG may delegate his responsibilities to the Assistant Attorney General for the Civil Rights Division and the Assistant Attorney General for the Criminal Division, jointly.

90 days after any election covered by this bill, the AG will submit to Congress a report compiling and detailing any allegations of false information submitted relating to the elections. The report will also be made public and will included detailed information of deceptive tactics, statistical compilations of how many allegations were made and of what type. Geographical locations and the populations affected, the status of investigations, any corrective actions taken, the rationale for taking the corrective actions or reason to not pursue them and the effectiveness of the corrective actions.

The report will also note if a Voting Integrity Task Force was established, how it was staffed and how it was funded, any referrals to Federal, State or local agencies, an suits instituted and any criminal prosecutions.

Sponsor:  Rep. Rahm Emanuel (D-IL-5^th)

Vote: Passed House by voice vote Jun 25, 2007

Cost to the taxpayers: “CBO estimates that implementing H.R. 1281 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.”

“Because those prosecuted and convicted under H.R. 1281 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”

Earmark Certification:   “In accordance with clause 9 of rule XXI of the Rules of the House of Representatives, H.R. 1281 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.”

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MORE INFORMATION

ADDITIONAL VIEWS

ADDITIONAL VIEWS

We support this bill as far as it goes. We want to stamp out voter fraud as much as the sponsors of the bill. However, we are disappointed that the Democrats on the Committee repeatedly opposed efforts to strengthen the bill.

NONCITIZEN VOTING

It is illegal for noncitizens to vote in federal elections. Yet Rep. Brian Bilbray's election opponent last November made national news when she was asked by someone, `I want to help, but I don't have papers,' and she replied `Everybody can help, yeah, absolutely, you can all help. You don't need papers for voting, you don't need to be a registered voter to help.' 1

[Footnote]

[Footnote 1: Dani Dodge, `Busby on Defense, Says She Misspoke,' San Diego Union-Tribune (June 3, 2006).]

The illegal population in America is likely around 12 to 20 million illegal aliens, but the number could certainly be higher. In addition to the illegal aliens already in the country, the Census Bureau estimates that the illegal alien population is growing by a minimum of 500,000 per year. Combining the number of legal and illegal aliens, there are likely at least 26 million non-U.S. citizens in the United States at any given time, and the majority of them are legal and illegal residents. 2

[Footnote]

[Footnote 2: Written Testimony of Dan Stein, President, Federation for American Immigration Reform, on `Non-Citizen Voting and ID Requirements for Elections,' before the Committee on House Administration (June 23, 2006).]

With the passage of the National Voter Registration Act of 1993 (NVRA), known as the `Motor-Voter Law,' the process of registering to vote became nearly automatic for anyone applying for a state driver's license. Under that law, the information supplied by the applicant for a license doubles as information for voter registration unless the applicant indicates they do not want to be registered to vote. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, making it a federal crime for noncitizens to vote in any federal election (or any state election, unless authorized by state law). As a penalty, ineligible noncitizens who knowingly vote may be deported. 3

[Footnote] Additionally, a noncitizen who falsely claims to be a United States citizen is in violation of this law. Still, despite these provisions, there have been many documented reports of illegal noncitizen voting.

[Footnote 3: 8 U.S.C. Sec. 1227 provides that:]

(6) Unlawful voters

(A) In general

Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.

(B) Exception

In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be deportable under any provision of this subsection based on such violation.

Last Congress, the House Administration Committee reported out H.R. 4844, the `Federal Election Integrity Act of 2006.' In House Report 109-666, the House Administration Committee reported as follows:

The U.S. Census Bureau estimated 8.7 million illegal aliens were in the U.S. in 2000. Immigration officials estimate that the illegal alien population grows by as many as 500,000 every year. These non-citizen population growth rates increase the potential for non-citizens to exploit and manipulate the outcome of elections.

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act was enacted, making it a federal crime for non-citizens to vote in any federal election. Enforcement of the statute is hampered by the difficulty involved in detecting violations. As no proof of citizenship is required prior to voting, violations by persons falsely presenting themselves as citizens can go unnoticed. Even when evidence of a violation presents itself, finding the perpetrators and gathering sufficient evidence to prosecute them is very difficult.

Despite the law that prohibits it, documented reports of non-citizen voting have increased. During the June 22, hearing before this Committee, Dan Stein, President of the Federation for American Immigration Reform, presented the following documented cases of illegal voting: (1) In the 2000 election, `election observers reported that a `sizable number' of votes may have been cast by ineligible felons, illegal immigrants, and non-citizens' in Florida; (2) In Utah, Legislative Auditor General John Schaff said in a February 8, 2005 report to the President of the Utah Senate that more than 58,000 illegal immigrants had Utah drivers' licenses, nearly 400 of them used their license to register to vote in Utah, and a sampling of that group revealed at least 14 actually voted in an election; and (3) Hawaiian election officials found 543 Oahu residents who were not U.S. citizens had registered to vote. Moreover, an investigation by the Immigration and Naturalization Service into alleged fraud in a 1996 Orange County, California congressional race revealed that non-citizens were registered to vote in the 46th Congressional District in the disputed election between Republican Robert Dornan and Democrat Loretta Sanchez. The Task Force established by the Committee on House Oversight found clear and convincing evidence that 748 invalid votes were cast in that election. 4

[Footnote] Further, state officials found that over 300 non-citizens illegally voted in that contest. These figures did not exceed the margin of victory, but they clearly demonstrate this problem is real and can impact the outcome in a close election.

[Footnote 4: U.S. House of Representatives Report 105-416 `Dismissing the Election Contest Against Loretta Sanchez,' 105th Congress 2d Session, February 12, 1998.]

Patrick Rogers, a New Mexico attorney, proffered compelling examples of illegal and fraudulent voting at the Committee's hearing on June 22, 2006. In support of this testimony, Mr. Rogers presented to the Committee the voter identification card of a woman holding a green card, who claimed she was pressured to register while standing in line to receive government services. Mr. Rogers also provided the Committee with several documented examples of illegal voting by non-citizens in the United States as follows:

Ì(1) In Maryland, a 2006 e-mail from a member of the Montgomery County Board of Elections in Montgomery County, Maryland was made public indicating he was going to register people to vote `regardless of status.' (2) Donna Hope, a non-citizen immigrant from Barbados who resides in Philadelphia, was told by a representative of the voter registration group `Voting is Power,' the voter mobilization arm of the Muslim American Society, that she could register to vote if she has been in the United States at least 7 years. Ms. Hope completed the registration form and was added to the voting rolls. In November of 2004, Ms. Hope did not vote because she was not a citizen, but someone illegally cast a ballot in her name. (3) In 1998, California Secretary of State Bill Jones referred to the INS claims by nearly 450 people called for jury duty in Orange County, California who claimed they were exempt from jury duty because they were non-citizens. The jury duty lists are pulled from driver's license and registered voter files.

The Committee's field briefing in Arizona also revealed accounts of voter fraud perpetrated by non-citizens. The Honorable Andrew Thomas, Maricopa County Attorney, advised the Committee of indictments of ten individuals who were non-citizens who nevertheless registered to vote. His testimony states in relevant part:

ÌThey were charged with filing false documents, a class 6 felony. Maricopa County Recorder Helen Purcell referred these matters to the County Attorney's Office after her office received jury questionnaire forms from the county jury commissioner. These forms were filled out by potential jurors who claimed they were unable to serve on a jury because they were not citizens. The county recorder's office found that they had claimed to be citizens when they filled out a voter registration form. Four of these defendants voted in at least one election. In addition to the ten charged defendants, the County Attorney is reviewing 149 other cases in which non-citizens have allegedly illegally registered to vote.

ÌThe county recorder has received inquiries from people seeking to become U.S. citizens who have been told by Immigration and Customs Enforcement to obtain a letter from her office confirming they have neither registered to vote nor voted. To date, a review of these matters has turned up 37 non-citizens who have registered to vote. Fifteen of these individuals have voted. And these numbers come from a relatively small universe of individuals--legal immigrants who seek to become citizens. These numbers do not tell us how many illegal immigrants have registered and voted.

The United States Department of Justice has also investigated and prosecuted several cases of non-citizen voting. 5

[Footnote] In Colorado, U.S. Attorneys convicted an individual of providing false information concerning U.S. citizenship for voter registration purposes. 6

[Footnote] In Alaska, a non-citizen was charged and found guilty of voting in the 2000, 2002 and 2004 elections in violation of 18 U.S.C. Section 611. 7

[Footnote] Additionally, 15 non-citizens were charged and 10 were convicted of voting in Federal elections conducted in counties located in South Florida. 8

[Footnote]

[Footnote 5: Election Fraud Prosecutions & Convictions Ballot Access & Voting Integrity Initiative, Criminal Division, Public Integrity Division, United States Department of Justice, October 2002-September 2005.]

[Footnote 6: United States v. Shah, Case No. 04-CR-00458.]

[Footnote 7: United States v. Rogelio Mejorada-Lopez, Case No. 05-CR-074.]

[Footnote 8: United States v. McKenzie, Case No. 04-CR-60160; United States v. Francois, No. 04-CR-60159; United States v. Exavier, No. 04-CR-60161; United States v. Lloyd Palmer, No. 04-CR-60159; United States v. Velrine Palmer, No. 04-CR-60162; United States v. Shivdayal, No. 04-CR-60164; United States v. Rickman, No. 04-CR-20491; United States v. Knight, No. 04-CR-20490; United States v. Sweeting, No. 04-CR-20489; United States v. Lubin, No. 04-CR-60163; United States v. Bennett, No. 04-CR-14048; United States v. O'Neil, No. 04-CR-60165; United States v. Torres-Perez, No. 04-CR-14046; United States v. Phillip, No. 04-CR-80103; United States v. Bain Knight, No. 04-CR-14047.]

While these examples demonstrate the need for additional protections to ensure only citizens are voting, the facts also reveal that eligible citizens are able to prove their eligibility and are not dissuaded from voting if required to do so. States that have implemented an identification requirement for voting have experienced positive results. At the Committee's field briefing in Arizona, Secretary of State Jan Brewer discussed the effects of the newly enacted identification law known as Proposition 200. Under Proposition 200, all voters are required to present identification at the polls before casting a ballot and all new voter registration applications must be accompanied by sufficient proof of citizenship. While identification is required in all Arizona jurisdictions, 15 jurisdictions have successfully implemented a proof of citizenship requirement. Secretary Brewer testified that Arizona has experienced a 15.4 percent increase in voter registration since the requirements of Proposition 200 went into effect.

Currently, state and local governments do not have any effective way to prevent non-citizens from registering to vote and voting. Section 303(b)(4)(A) of HAVA requires inclusion of a citizenship box on the National Voter Registration Form. When applying to register to vote, individuals must check the box affirming their citizenship. The law provides that registration forms that do not have the box checked should be rejected and returned to the individual. However, some states are not enforcing this requirement. Even in states that do enforce the citizenship requirement, it is still done on an honor system that relies on the truthful response of the registrant. While the present state of the law leaves the system open to abuse, H.R. 4844's identification and proof of citizenship requirement will ensure that only eligible citizens are voting.

While there may be disputes about the nature and extent of voter fraud, there can be no dispute that it occurs. In close elections, even a small amount of fraud can affect the outcome. More importantly, reports of fraud can cause people to lose confidence in the integrity of the system and thereby discourage participation. People must be encouraged to vote with confidence that their vote will be counted and will not be cancelled out by an illegal vote.

In North Carolina, recent investigations into illegal noncitizen voting led one resident agent in charge of the Immigration and Customs Enforcement agency's local office to say `It goes to the integrity of the entire democratic system when we have . . . aliens registering to vote.' 9

[Footnote] As the Charlotte News and Observer reported:

[Footnote 9: Jessica Rocha, `Voter Rolls Risky for Aliens,' The Charlotte News and Observer (December 7, 2006).]

Voter registration laws in most parts of the country don't require written proof of citizenship . . . It is so easy to register that Attracta Kelly of the Immigrant Legal Assistance Project at the N.C. Justice Center warns clients against even taking the form when going to the Division of Motor Vehicles office because it could hurt their chances of ever getting citizenship. `Especially if they don't speak English very well. They just think it's a part of their [driver's license] test,' she said. `It's handed oftentimes to people who are just legal residents.' 10

[Footnote]

[Footnote 10: Jessica Rocha, `Voter Rolls Risky for Aliens,' The Charlotte News and Observer (December 7, 2006).]

Patrick Rogers, the attorney in New Mexico, testified as follows before the House Administration Committee on June 22, 2006:

Voting by illegal immigrants is one of the toughest issues to study in the election and voting area. This is because there is no centralized or accessible list of illegal immigrants that can be compared to voter registration lists or lists of persons who actually cast ballots. The closest `list' I am aware of that could be used as a basis for systematic research is a list maintained by the Bureau of Immigration and Customs Enforcement (`ICE') at the Department of Homeland Security. This is a list of those illegal immigrants who have overstayed their Visas or are `deportable.' But the list is not available to election officials to check or validate voter registration rolls . . . A Congressional Research Service report from September of 2005 indicated that more than 25 states did not require proof of legal presence in the United States in order to apply for and obtain a driver's license.

The essential problem is that there is no national citizenship registry, so state and local officials are unable to confirm citizenship, and no jurisdiction requires voters to show proof of citizenship at the polls. `There is no way of checking,' said Maryland State Board of Elections Administrator Linda H. Lamone. `We have no way of doing that. We have no access to any information about who is in the United States legally or otherwise.' 11

[Footnote] The REAL ID Act does not require proof of citizenship. It requires proof of lawful presence, as there is no prohibition from issuing driver's licenses to foreign visitors, legal immigrants, or even illegal immigrants, although the REAL ID Act does limit states to issuing only temporary licenses of no longer than one year's duration and state ID cards to illegal immigrants.

[Footnote 11: Christina Bellantoni, `Little to Stop Illegal Aliens from Voting,' The Washington Times (September 24, 2004).]

In 2005, a prominent group of bipartisan leaders and scholars, led by former President Carter and Secretary of State James Baker, III, issued a very influential report. 12

[Footnote] One of the chief recommendations of the bipartisan Carter-Baker Commission on Voting was as follows:

[Footnote 12: `Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform' (September 2005) (the `Carter-Baker Report').]

Instead of creating a new card, the Commission recommends that states use `REAL ID' cards for voting purposes. The REAL ID Act, signed into law in May 2005, requires states to verify each individual's full legal name, date of birth, address, Social Security number, and U.S. citizenship before the individual is issued a driver's license or personal ID card. The REAL ID is a logical vehicle because the National Voter Registration Act established a connection between obtaining a driver's license and registering to vote. The REAL ID card adds two critical elements for voting--proof of citizenship and verification by using the full Social Security number. The REAL ID Act does not require that the card indicates citizenship, but that would need to be done if the card is to be used for voting purposes. 13

[Footnote]

[Footnote 13: Carter-Baker Report, at 19 (emphasis added). The card mandated by the REAL ID Act includes a person's full legal name, date of birth, a signature captured as a digital image, a photograph, and a person's Social Security number. We are bemused by the statement of Rep. Jerrold Nadler at the markup that `The Carter-Baker Commission was grossly mistaken in many of its findings and should not be given any credence in the area of voting fraud.' Members of the Carter-Baker Commission on Federal Election Reform included former President Jimmy Carter, former Democratic Senate Majority Leader Tom Daschle, and former Democratic House Member Lee Hamilton.]

HOW H.R. 1281 ADDRESSES NONCITIZEN VOTING

We believe that H.R. 1281 does address noncitizen voting in an indirect way. We explain that reasoning below.

H.R. 1281 provides that whoever `knowingly communicates false election-related information about that election, with intent to prevent another person from exercising the right to vote in that election, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.' 14

[Footnote] The National Voter Registration Act of 1993 15

[Footnote] requires that a person registering to vote affirm that they are a U.S. citizen. 16

[Footnote] If a noncitizen signs, or attempts to sign, any form that can be used for voting purposes--including a voting registration form--and that form states that they are a citizen when they are not a citizen, then that is a false statement. The bill also specifically defines `election related information' to include `information regarding a voter's registration status or eligibility.' 17

[Footnote] If such a noncitizen who makes a false statement on a voting registration form is consequently allowed to vote, and they vote for, say, Candidate Brown, they will necessarily negate the legitimate vote of someone else who was a citizen and voted for rival Candidate Jones. If someone votes illegally and negates a legal voter's vote, the illegal vote has effectively denied the legal vote's right to vote. In the landmark case of Reynolds v. Sims, the Supreme Court stated `the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' 18

[Footnote] So an illegally voting noncitizen in that case would violate the clear terms of H.R. 1281 and be subject to up to five years in jail.

[Footnote 14: Sec. 2(a) of H.R. 1281.]

[Footnote 15: 42 U.S.C. Sec. 1973gg.]

[Footnote 16: 42 U.S.C. Sec. 1973gg-3(a)(2)(C)(i).]

[Footnote 17: Sec. 2(a) of H.R. 1281.]

[Footnote 18: Reynolds v. Sims, 377 U.S. 533, 555 (1964).]

The bill also provides that `[i]mmediately after receiving a report [of a violation of the bill], the Attorney General shall consider and review such report and, if the Attorney General determines that there is a reasonable basis to find that a violation has occurred, the Attorney General shall . . . undertake all effective measures necessary to provide correct information to voters affected by the false information.' 19

[Footnote] `All effective measures necessary to provide correct information' to the voting public affected by illegal noncitizen voting includes the creation of a citizenship registry that will prevent voting fraud and ensure that only citizens can vote in Federal elections. In the absence of a database that ensures only citizens are voting, it would not be truthful to keep telling voters that their legal votes will be counted, and not be negated by an illegally cast vote.

[Footnote 19: Sec. 5(b)(1) of H.R. 1281.]

Regarding the issue of intent, Blacks's Law Dictionary defines `constructive intent' as `A legal principle that actual intent will be presumed when an act leading to the result could have been reasonably expected to cause that result.' Further, Professors LaFave and Scott, in their authoritative treatise on criminal law, write, `The meaning of the word `intent' in the criminal law has always been rather obscure, largely as a result of its use in such phrases as `criminal intent,' `general intent,' `specific intent,' `constructive intent,' and `presumed intent.' 20

[Footnote] If someone knows they are not a citizen, but they sign a voter registration form that states they are a citizen, and then that person votes illegally, and knows they are voting illegally, then they obviously know that their illegal vote is going to cancel out the vote of another, legally voting citizen. That knowledge would constitute an intent to deny another voter their right to exercise their vote. Intent can be read at least that expansively in the criminal context, and it can be read even more expansively in the civil context where large monetary fines are at issue.

[Footnote 20: W. Lafave & A. Scott, Criminal Law Sec. 3.5, at 216 (2d ed. 1986), and most recent 2007 update.]

Reading those concepts together, we believe this bill does prohibit false claims of citizenship that are made to register to vote. But we also think that concept could have been made clearer.

REPUBLICAN AMENDMENTS

First, we are glad that Ranking Member Smith's amendment was adopted at committee. It struck the part of the bill that limits the prohibition on voting fraud to fraud committed `within 60 days' of a federal election. Illegal voting by non-citizens can occur when voting registration forms are filled out more than 60 days before a federal election. Nothing the Supreme Court has said indicates that there is any constitutional problem with Congress's prohibiting lying on voting registration forms at all times, not just 60 days before an election. Voting fraud is voting fraud, regardless of what page of the calendar it occurs on.

However, we made several attempts to make it clearer that the bill addresses the serious problem of noncitizen voting. We wanted to broaden the bill to make it clear that the bill covers not only fraud that directly denies the right to vote, but also fraud that has the effect of denying the right to vote. We are disappointed that the Democratic majority, on a party line vote, opposed Mr. Chabot's amendment to the bill that would have simply added the word `effectively' before the words `exercising the right to vote' in H.R. 1281 as introduced, such that the bill would prohibit people from preventing other people from `effectively exercising the right to vote.'

Clearly, the right to vote means nothing if it cannot be effectively exercised. Again, in the landmark case of Reynolds v. Sims, the Supreme Court stated `the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' 21

[Footnote] And in Williams v. Rhodes, the Supreme Court struck down a law because it infringed on `the right of qualified voters . . . to cast their votes effectively.' 22

[Footnote]

[Footnote 21: Reynolds v. Sims, 377 U.S. 533, 555 (1964).]

[Footnote 22: 393 U.S. 23, 30 (1968).]

Chairman Nadler of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties stated in the first sentence of his opening statement on this bill at the Judiciary Committee markup that `[t]he right to vote and the right to cast an effective vote in a free and fair election is the fundamental pillar of any democratic country.' 23

[Footnote] At the markup of H.R. 1281, Chairman Conyers said, `by inserting the word `effectively,' it would add vagueness creating constitutional due process questions in a criminal context.'

[Footnote 23: House Judiciary Committee Markup of H.R. 1281 (March 29, 2007) (remarks of Rep. Nadler).]

But the Supreme Court itself has used the term `effectively' to describe `the right of qualified voters . . . to cast their votes effectively.' 24

[Footnote] Clearly the Supreme Court does not find that word unconstitutionally vague. Mr. Chabot's amendment would have made it a crime to communicate false election related information with the intent to effectively deny someone else's right to vote.

[Footnote 24: 393 U.S. 23, 30 (1968).]

At the markup, Mr. Davis said `[t]he principal concern with [the] amendment is that I believe it would shift the focus of prosecution from the intent to the effect of the wrongful action.' That statement does not withstand examination. If the bill's subject were people who act `with intent to prevent another person from effectively exercising the right to vote,' anyone with the intent to effectively deny the right to vote would be subject to prosecution. The amendment would not alter the requirement that intent be present. We do not understand why anyone would oppose an amendment prohibiting people from acting `with intent to prevent another person from effectively exercising the right to vote.' If someone communicates false election related information with the intent to effectively negate someone else's legal vote, they should also be punished with up to five years in prison.

The Fifteenth Amendment itself states that `The right of citizens of the United States to vote shall not be denied or abridged . . . on account of race.' 25

[Footnote] One of the most respected law professors in the country, John Hart Ely, has written that he was unable `to read the Fifteenth Amendment as meaning anything other than that no one person's vote is to be intentionally made less effective than another's because of his race or color.' 26

[Footnote]

[Footnote 25: U.S. Const. Amendment XV.]

[Footnote 26: John Hart Ely, `Gerrymanders: The Good, the Bad, and the Ugly,' 50 Stan. L. Rev. 607, 632 (1998) (emphasis added).]

Chairman Conyers ruled several other amendments non-germane, including an amendment offered by Mr. Forbes that would have provided that `If the offense results in voting in a Federal election by more than 10 persons who are not citizens of the United States, the offender shall be fined under this title or imprisoned not more than 10 years, or both.' Other amendments Chairman Conyers ruled non-germane included an amendment offered by Mr. Feeney that would have created a uniform system of voting eligibility verification and an amendment offered by Mr. King that would have required the Department of Justice to conduct a study on the feasibility of the creation of a national citizenship database for use in verifying voting eligibility and preventing voting fraud. We believe that all of these amendments were germane. They would have improved the bill by addressing the serious problem of noncitizen voting more directly and comprehensively. We all want to eliminate the problem of voter fraud and we are disappointed that the Democrats opposed our efforts to strengthen this bill.
Lamar Smith.
Steve Chabot.
Ric Keller.
Tom Feeney.
Trent Franks.

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Week Ending June 29, 2006

H.R.1281 To amend title 18, United States Code, to prohibit certain deceptive practices in Federal elections, and for other purposes.

The bill aims to prohibit schemes that suppress a citizen’s right to vote by making such schemes a violation of Federal law and establishing penalties up to a $250,000 fine and 5 years imprisonment or both.

It is established that whoever intimidates, threatens, coerces or attempts to intimidate, threaten or coerce any other person for the purpose of interfering with the right of such other person to vote or vote as he may choose, or of causing such other person to vote for, or not vote for, any candidate for the office of President, Vice President, Presidential elector, Senator, Representative, Delegate or resident Commissioner at any election held solely or in part for the purpose of electing the candidate shall be fined or imprisoned not more than five years or both. General, primary, run-off or special elections are included.

Specifically the effort to influence will include false or misleading information about the time, place, manner of conducting the elections, the qualifications for or restrictions on voter eligibility including criminal penalties, registration status or eligibility. Closed primary elections are also governed by prohibitions on misleading information about explicit endorsement of a person or organization of a candidate for any office.

In a closed primary election misleading information about the political party affiliation of any candidate for office is prohibited.

Examples

The bill report included as examples, flyers stating that voters could cast their votes three days after the election if the weather is bad (New Orleans), letters informing voters that their registrations were illegal and that they would be unable to vote (Ohio), voters would be found ineligible to vote due to traffic violations, family member criminal records or for voting in previous elections during the year (Milwaulkee). Such tactics, the report noted, continue to grow and seem to target traditionally disenfranchised voters and include phone calls offering the voter to vote right then over the phone without having to go to the polls. (Virginia)

Immigrants having earned the right to vote were told in letters that it was illegal for them to vote and could be incarcerated (California).

Voters were mislead when told that candidates were endorsed by the opponent’s party and by favored ethnic groups. (Maryland)

Committee amendments

In committee, an amendment that would have qualified an effort to prevent exercising voting rights by requiring the effort to have ‘effectively’ prevented that right to exercise the vote was defeated.

An amendment regarding non-citizen voting was ruled non-germane and a motion to table that amendment was agreed to.

Reporting a violation

The bill provides that any person may report to the Attorney general any violations or possible violation. The AG, immediately after receiving a report, shall consider and review the report and if it is determined to have a reasonable basis to find that a violation has occurred, the AG will undertake all effective measures necessary to provide correct information to voters affected by the false information, refer an civil rights-related matters to the appropriate division in the Department of Justice and refer the matter to the appropriate Federal and State authorities for criminal prosecution or civil action after the elections.

The AG will promulgate regulations regarding the methods and means of corrective actions to be taken and will promulgate them in consultation with the Election Assistance Commission, civil rights organizations, voting rights groups, State and local election officials, voter protection groups and other interested community organizations.

The AG will consult with the Federal Elections Commission and the Election Assistance Commission to conduct a study on the feasibility of providing the corrective information through public service announcements, emergency alert system or other means of public broadcast. The AG will make public through the Internet, radio, TV and newspaper advertisements information on the responsibilities, contact information and complaint procedures applicable.

A Voting Integrity Task Force will be formed to carry out some requirements. The makeup of the Task Force is not defined in the bill. The AG may delegate his responsibilities to the Assistant Attorney General for the Civil Rights Division and the Assistant Attorney General for the Criminal Division, jointly.

90 days after any election covered by this bill, the AG will submit to Congress a report compiling and detailing any allegations of false information submitted relating to the elections. The report will also be made public and will included detailed information of deceptive tactics, statistical compilations of how many allegations were made and of what type. Geographical locations and the populations affected, the status of investigations, any corrective actions taken, the rationale for taking the corrective actions or reason to not pursue them and the effectiveness of the corrective actions.

The report will also note if a Voting Integrity Task Force was established, how it was staffed and how it was funded, any referrals to Federal, State or local agencies, an suits instituted and any criminal prosecutions.

Sponsor:  Rep. Rahm Emanuel (D-IL-5^th)

Vote:

Cost to the taxpayers: “CBO estimates that implementing H.R. 1281 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.”

“Because those prosecuted and convicted under H.R. 1281 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”

Earmark Certification:   “In accordance with clause 9 of rule XXI of the Rules of the House of Representatives, H.R. 1281 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.”

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MORE INFORMATION

ADDITIONAL VIEWS

ADDITIONAL VIEWS

We support this bill as far as it goes. We want to stamp out voter fraud as much as the sponsors of the bill. However, we are disappointed that the Democrats on the Committee repeatedly opposed efforts to strengthen the bill.

NONCITIZEN VOTING

It is illegal for noncitizens to vote in federal elections. Yet Rep. Brian Bilbray's election opponent last November made national news when she was asked by someone, `I want to help, but I don't have papers,' and she replied `Everybody can help, yeah, absolutely, you can all help. You don't need papers for voting, you don't need to be a registered voter to help.' 1

[Footnote]

[Footnote 1: Dani Dodge, `Busby on Defense, Says She Misspoke,' San Diego Union-Tribune (June 3, 2006).]

The illegal population in America is likely around 12 to 20 million illegal aliens, but the number could certainly be higher. In addition to the illegal aliens already in the country, the Census Bureau estimates that the illegal alien population is growing by a minimum of 500,000 per year. Combining the number of legal and illegal aliens, there are likely at least 26 million non-U.S. citizens in the United States at any given time, and the majority of them are legal and illegal residents. 2

[Footnote]

[Footnote 2: Written Testimony of Dan Stein, President, Federation for American Immigration Reform, on `Non-Citizen Voting and ID Requirements for Elections,' before the Committee on House Administration (June 23, 2006).]

With the passage of the National Voter Registration Act of 1993 (NVRA), known as the `Motor-Voter Law,' the process of registering to vote became nearly automatic for anyone applying for a state driver's license. Under that law, the information supplied by the applicant for a license doubles as information for voter registration unless the applicant indicates they do not want to be registered to vote. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, making it a federal crime for noncitizens to vote in any federal election (or any state election, unless authorized by state law). As a penalty, ineligible noncitizens who knowingly vote may be deported. 3

[Footnote] Additionally, a noncitizen who falsely claims to be a United States citizen is in violation of this law. Still, despite these provisions, there have been many documented reports of illegal noncitizen voting.

[Footnote 3: 8 U.S.C. Sec. 1227 provides that:]

(6) Unlawful voters

(A) In general

Any alien who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is deportable.

(B) Exception

In the case of an alien who voted in a Federal, State, or local election (including an initiative, recall, or referendum) in violation of a lawful restriction of voting to citizens, if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen, the alien shall not be considered to be deportable under any provision of this subsection based on such violation.

Last Congress, the House Administration Committee reported out H.R. 4844, the `Federal Election Integrity Act of 2006.' In House Report 109-666, the House Administration Committee reported as follows:

The U.S. Census Bureau estimated 8.7 million illegal aliens were in the U.S. in 2000. Immigration officials estimate that the illegal alien population grows by as many as 500,000 every year. These non-citizen population growth rates increase the potential for non-citizens to exploit and manipulate the outcome of elections.

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act was enacted, making it a federal crime for non-citizens to vote in any federal election. Enforcement of the statute is hampered by the difficulty involved in detecting violations. As no proof of citizenship is required prior to voting, violations by persons falsely presenting themselves as citizens can go unnoticed. Even when evidence of a violation presents itself, finding the perpetrators and gathering sufficient evidence to prosecute them is very difficult.

Despite the law that prohibits it, documented reports of non-citizen voting have increased. During the June 22, hearing before this Committee, Dan Stein, President of the Federation for American Immigration Reform, presented the following documented cases of illegal voting: (1) In the 2000 election, `election observers reported that a `sizable number' of votes may have been cast by ineligible felons, illegal immigrants, and non-citizens' in Florida; (2) In Utah, Legislative Auditor General John Schaff said in a February 8, 2005 report to the President of the Utah Senate that more than 58,000 illegal immigrants had Utah drivers' licenses, nearly 400 of them used their license to register to vote in Utah, and a sampling of that group revealed at least 14 actually voted in an election; and (3) Hawaiian election officials found 543 Oahu residents who were not U.S. citizens had registered to vote. Moreover, an investigation by the Immigration and Naturalization Service into alleged fraud in a 1996 Orange County, California congressional race revealed that non-citizens were registered to vote in the 46th Congressional District in the disputed election between Republican Robert Dornan and Democrat Loretta Sanchez. The Task Force established by the Committee on House Oversight found clear and convincing evidence that 748 invalid votes were cast in that election. 4

[Footnote] Further, state officials found that over 300 non-citizens illegally voted in that contest. These figures did not exceed the margin of victory, but they clearly demonstrate this problem is real and can impact the outcome in a close election.

[Footnote 4: U.S. House of Representatives Report 105-416 `Dismissing the Election Contest Against Loretta Sanchez,' 105th Congress 2d Session, February 12, 1998.]

Patrick Rogers, a New Mexico attorney, proffered compelling examples of illegal and fraudulent voting at the Committee's hearing on June 22, 2006. In support of this testimony, Mr. Rogers presented to the Committee the voter identification card of a woman holding a green card, who claimed she was pressured to register while standing in line to receive government services. Mr. Rogers also provided the Committee with several documented examples of illegal voting by non-citizens in the United States as follows:

Ì(1) In Maryland, a 2006 e-mail from a member of the Montgomery County Board of Elections in Montgomery County, Maryland was made public indicating he was going to register people to vote `regardless of status.' (2) Donna Hope, a non-citizen immigrant from Barbados who resides in Philadelphia, was told by a representative of the voter registration group `Voting is Power,' the voter mobilization arm of the Muslim American Society, that she could register to vote if she has been in the United States at least 7 years. Ms. Hope completed the registration form and was added to the voting rolls. In November of 2004, Ms. Hope did not vote because she was not a citizen, but someone illegally cast a ballot in her name. (3) In 1998, California Secretary of State Bill Jones referred to the INS claims by nearly 450 people called for jury duty in Orange County, California who claimed they were exempt from jury duty because they were non-citizens. The jury duty lists are pulled from driver's license and registered voter files.

The Committee's field briefing in Arizona also revealed accounts of voter fraud perpetrated by non-citizens. The Honorable Andrew Thomas, Maricopa County Attorney, advised the Committee of indictments of ten individuals who were non-citizens who nevertheless registered to vote. His testimony states in relevant part:

ÌThey were charged with filing false documents, a class 6 felony. Maricopa County Recorder Helen Purcell referred these matters to the County Attorney's Office after her office received jury questionnaire forms from the county jury commissioner. These forms were filled out by potential jurors who claimed they were unable to serve on a jury because they were not citizens. The county recorder's office found that they had claimed to be citizens when they filled out a voter registration form. Four of these defendants voted in at least one election. In addition to the ten charged defendants, the County Attorney is reviewing 149 other cases in which non-citizens have allegedly illegally registered to vote.

ÌThe county recorder has received inquiries from people seeking to become U.S. citizens who have been told by Immigration and Customs Enforcement to obtain a letter from her office confirming they have neither registered to vote nor voted. To date, a review of these matters has turned up 37 non-citizens who have registered to vote. Fifteen of these individuals have voted. And these numbers come from a relatively small universe of individuals--legal immigrants who seek to become citizens. These numbers do not tell us how many illegal immigrants have registered and voted.

The United States Department of Justice has also investigated and prosecuted several cases of non-citizen voting. 5

[Footnote] In Colorado, U.S. Attorneys convicted an individual of providing false information concerning U.S. citizenship for voter registration purposes. 6

[Footnote] In Alaska, a non-citizen was charged and found guilty of voting in the 2000, 2002 and 2004 elections in violation of 18 U.S.C. Section 611. 7

[Footnote] Additionally, 15 non-citizens were charged and 10 were convicted of voting in Federal elections conducted in counties located in South Florida. 8

[Footnote]

[Footnote 5: Election Fraud Prosecutions & Convictions Ballot Access & Voting Integrity Initiative, Criminal Division, Public Integrity Division, United States Department of Justice, October 2002-September 2005.]

[Footnote 6: United States v. Shah, Case No. 04-CR-00458.]

[Footnote 7: United States v. Rogelio Mejorada-Lopez, Case No. 05-CR-074.]

[Footnote 8: United States v. McKenzie, Case No. 04-CR-60160; United States v. Francois, No. 04-CR-60159; United States v. Exavier, No. 04-CR-60161; United States v. Lloyd Palmer, No. 04-CR-60159; United States v. Velrine Palmer, No. 04-CR-60162; United States v. Shivdayal, No. 04-CR-60164; United States v. Rickman, No. 04-CR-20491; United States v. Knight, No. 04-CR-20490; United States v. Sweeting, No. 04-CR-20489; United States v. Lubin, No. 04-CR-60163; United States v. Bennett, No. 04-CR-14048; United States v. O'Neil, No. 04-CR-60165; United States v. Torres-Perez, No. 04-CR-14046; United States v. Phillip, No. 04-CR-80103; United States v. Bain Knight, No. 04-CR-14047.]

While these examples demonstrate the need for additional protections to ensure only citizens are voting, the facts also reveal that eligible citizens are able to prove their eligibility and are not dissuaded from voting if required to do so. States that have implemented an identification requirement for voting have experienced positive results. At the Committee's field briefing in Arizona, Secretary of State Jan Brewer discussed the effects of the newly enacted identification law known as Proposition 200. Under Proposition 200, all voters are required to present identification at the polls before casting a ballot and all new voter registration applications must be accompanied by sufficient proof of citizenship. While identification is required in all Arizona jurisdictions, 15 jurisdictions have successfully implemented a proof of citizenship requirement. Secretary Brewer testified that Arizona has experienced a 15.4 percent increase in voter registration since the requirements of Proposition 200 went into effect.

Currently, state and local governments do not have any effective way to prevent non-citizens from registering to vote and voting. Section 303(b)(4)(A) of HAVA requires inclusion of a citizenship box on the National Voter Registration Form. When applying to register to vote, individuals must check the box affirming their citizenship. The law provides that registration forms that do not have the box checked should be rejected and returned to the individual. However, some states are not enforcing this requirement. Even in states that do enforce the citizenship requirement, it is still done on an honor system that relies on the truthful response of the registrant. While the present state of the law leaves the system open to abuse, H.R. 4844's identification and proof of citizenship requirement will ensure that only eligible citizens are voting.

While there may be disputes about the nature and extent of voter fraud, there can be no dispute that it occurs. In close elections, even a small amount of fraud can affect the outcome. More importantly, reports of fraud can cause people to lose confidence in the integrity of the system and thereby discourage participation. People must be encouraged to vote with confidence that their vote will be counted and will not be cancelled out by an illegal vote.

In North Carolina, recent investigations into illegal noncitizen voting led one resident agent in charge of the Immigration and Customs Enforcement agency's local office to say `It goes to the integrity of the entire democratic system when we have . . . aliens registering to vote.' 9

[Footnote] As the Charlotte News and Observer reported:

[Footnote 9: Jessica Rocha, `Voter Rolls Risky for Aliens,' The Charlotte News and Observer (December 7, 2006).]

Voter registration laws in most parts of the country don't require written proof of citizenship . . . It is so easy to register that Attracta Kelly of the Immigrant Legal Assistance Project at the N.C. Justice Center warns clients against even taking the form when going to the Division of Motor Vehicles office because it could hurt their chances of ever getting citizenship. `Especially if they don't speak English very well. They just think it's a part of their [driver's license] test,' she said. `It's handed oftentimes to people who are just legal residents.' 10

[Footnote]

[Footnote 10: Jessica Rocha, `Voter Rolls Risky for Aliens,' The Charlotte News and Observer (December 7, 2006).]

Patrick Rogers, the attorney in New Mexico, testified as follows before the House Administration Committee on June 22, 2006:

Voting by illegal immigrants is one of the toughest issues to study in the election and voting area. This is because there is no centralized or accessible list of illegal immigrants that can be compared to voter registration lists or lists of persons who actually cast ballots. The closest `list' I am aware of that could be used as a basis for systematic research is a list maintained by the Bureau of Immigration and Customs Enforcement (`ICE') at the Department of Homeland Security. This is a list of those illegal immigrants who have overstayed their Visas or are `deportable.' But the list is not available to election officials to check or validate voter registration rolls . . . A Congressional Research Service report from September of 2005 indicated that more than 25 states did not require proof of legal presence in the United States in order to apply for and obtain a driver's license.

The essential problem is that there is no national citizenship registry, so state and local officials are unable to confirm citizenship, and no jurisdiction requires voters to show proof of citizenship at the polls. `There is no way of checking,' said Maryland State Board of Elections Administrator Linda H. Lamone. `We have no way of doing that. We have no access to any information about who is in the United States legally or otherwise.' 11

[Footnote] The REAL ID Act does not require proof of citizenship. It requires proof of lawful presence, as there is no prohibition from issuing driver's licenses to foreign visitors, legal immigrants, or even illegal immigrants, although the REAL ID Act does limit states to issuing only temporary licenses of no longer than one year's duration and state ID cards to illegal immigrants.

[Footnote 11: Christina Bellantoni, `Little to Stop Illegal Aliens from Voting,' The Washington Times (September 24, 2004).]

In 2005, a prominent group of bipartisan leaders and scholars, led by former President Carter and Secretary of State James Baker, III, issued a very influential report. 12

[Footnote] One of the chief recommendations of the bipartisan Carter-Baker Commission on Voting was as follows:

[Footnote 12: `Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform' (September 2005) (the `Carter-Baker Report').]

Instead of creating a new card, the Commission recommends that states use `REAL ID' cards for voting purposes. The REAL ID Act, signed into law in May 2005, requires states to verify each individual's full legal name, date of birth, address, Social Security number, and U.S. citizenship before the individual is issued a driver's license or personal ID card. The REAL ID is a logical vehicle because the National Voter Registration Act established a connection between obtaining a driver's license and registering to vote. The REAL ID card adds two critical elements for voting--proof of citizenship and verification by using the full Social Security number. The REAL ID Act does not require that the card indicates citizenship, but that would need to be done if the card is to be used for voting purposes. 13

[Footnote]

[Footnote 13: Carter-Baker Report, at 19 (emphasis added). The card mandated by the REAL ID Act includes a person's full legal name, date of birth, a signature captured as a digital image, a photograph, and a person's Social Security number. We are bemused by the statement of Rep. Jerrold Nadler at the markup that `The Carter-Baker Commission was grossly mistaken in many of its findings and should not be given any credence in the area of voting fraud.' Members of the Carter-Baker Commission on Federal Election Reform included former President Jimmy Carter, former Democratic Senate Majority Leader Tom Daschle, and former Democratic House Member Lee Hamilton.]

HOW H.R. 1281 ADDRESSES NONCITIZEN VOTING

We believe that H.R. 1281 does address noncitizen voting in an indirect way. We explain that reasoning below.

H.R. 1281 provides that whoever `knowingly communicates false election-related information about that election, with intent to prevent another person from exercising the right to vote in that election, or attempts to do so, shall be fined under this title or imprisoned not more than 5 years, or both.' 14

[Footnote] The National Voter Registration Act of 1993 15

[Footnote] requires that a person registering to vote affirm that they are a U.S. citizen. 16

[Footnote] If a noncitizen signs, or attempts to sign, any form that can be used for voting purposes--including a voting registration form--and that form states that they are a citizen when they are not a citizen, then that is a false statement. The bill also specifically defines `election related information' to include `information regarding a voter's registration status or eligibility.' 17

[Footnote] If such a noncitizen who makes a false statement on a voting registration form is consequently allowed to vote, and they vote for, say, Candidate Brown, they will necessarily negate the legitimate vote of someone else who was a citizen and voted for rival Candidate Jones. If someone votes illegally and negates a legal voter's vote, the illegal vote has effectively denied the legal vote's right to vote. In the landmark case of Reynolds v. Sims, the Supreme Court stated `the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' 18

[Footnote] So an illegally voting noncitizen in that case would violate the clear terms of H.R. 1281 and be subject to up to five years in jail.

[Footnote 14: Sec. 2(a) of H.R. 1281.]

[Footnote 15: 42 U.S.C. Sec. 1973gg.]

[Footnote 16: 42 U.S.C. Sec. 1973gg-3(a)(2)(C)(i).]

[Footnote 17: Sec. 2(a) of H.R. 1281.]

[Footnote 18: Reynolds v. Sims, 377 U.S. 533, 555 (1964).]

The bill also provides that `[i]mmediately after receiving a report [of a violation of the bill], the Attorney General shall consider and review such report and, if the Attorney General determines that there is a reasonable basis to find that a violation has occurred, the Attorney General shall . . . undertake all effective measures necessary to provide correct information to voters affected by the false information.' 19

[Footnote] `All effective measures necessary to provide correct information' to the voting public affected by illegal noncitizen voting includes the creation of a citizenship registry that will prevent voting fraud and ensure that only citizens can vote in Federal elections. In the absence of a database that ensures only citizens are voting, it would not be truthful to keep telling voters that their legal votes will be counted, and not be negated by an illegally cast vote.

[Footnote 19: Sec. 5(b)(1) of H.R. 1281.]

Regarding the issue of intent, Blacks's Law Dictionary defines `constructive intent' as `A legal principle that actual intent will be presumed when an act leading to the result could have been reasonably expected to cause that result.' Further, Professors LaFave and Scott, in their authoritative treatise on criminal law, write, `The meaning of the word `intent' in the criminal law has always been rather obscure, largely as a result of its use in such phrases as `criminal intent,' `general intent,' `specific intent,' `constructive intent,' and `presumed intent.' 20

[Footnote] If someone knows they are not a citizen, but they sign a voter registration form that states they are a citizen, and then that person votes illegally, and knows they are voting illegally, then they obviously know that their illegal vote is going to cancel out the vote of another, legally voting citizen. That knowledge would constitute an intent to deny another voter their right to exercise their vote. Intent can be read at least that expansively in the criminal context, and it can be read even more expansively in the civil context where large monetary fines are at issue.

[Footnote 20: W. Lafave & A. Scott, Criminal Law Sec. 3.5, at 216 (2d ed. 1986), and most recent 2007 update.]

Reading those concepts together, we believe this bill does prohibit false claims of citizenship that are made to register to vote. But we also think that concept could have been made clearer.

REPUBLICAN AMENDMENTS

First, we are glad that Ranking Member Smith's amendment was adopted at committee. It struck the part of the bill that limits the prohibition on voting fraud to fraud committed `within 60 days' of a federal election. Illegal voting by non-citizens can occur when voting registration forms are filled out more than 60 days before a federal election. Nothing the Supreme Court has said indicates that there is any constitutional problem with Congress's prohibiting lying on voting registration forms at all times, not just 60 days before an election. Voting fraud is voting fraud, regardless of what page of the calendar it occurs on.

However, we made several attempts to make it clearer that the bill addresses the serious problem of noncitizen voting. We wanted to broaden the bill to make it clear that the bill covers not only fraud that directly denies the right to vote, but also fraud that has the effect of denying the right to vote. We are disappointed that the Democratic majority, on a party line vote, opposed Mr. Chabot's amendment to the bill that would have simply added the word `effectively' before the words `exercising the right to vote' in H.R. 1281 as introduced, such that the bill would prohibit people from preventing other people from `effectively exercising the right to vote.'

Clearly, the right to vote means nothing if it cannot be effectively exercised. Again, in the landmark case of Reynolds v. Sims, the Supreme Court stated `the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.' 21

[Footnote] And in Williams v. Rhodes, the Supreme Court struck down a law because it infringed on `the right of qualified voters . . . to cast their votes effectively.' 22

[Footnote]

[Footnote 21: Reynolds v. Sims, 377 U.S. 533, 555 (1964).]

[Footnote 22: 393 U.S. 23, 30 (1968).]

Chairman Nadler of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties stated in the first sentence of his opening statement on this bill at the Judiciary Committee markup that `[t]he right to vote and the right to cast an effective vote in a free and fair election is the fundamental pillar of any democratic country.' 23

[Footnote] At the markup of H.R. 1281, Chairman Conyers said, `by inserting the word `effectively,' it would add vagueness creating constitutional due process questions in a criminal context.'

[Footnote 23: House Judiciary Committee Markup of H.R. 1281 (March 29, 2007) (remarks of Rep. Nadler).]

But the Supreme Court itself has used the term `effectively' to describe `the right of qualified voters . . . to cast their votes effectively.' 24

[Footnote] Clearly the Supreme Court does not find that word unconstitutionally vague. Mr. Chabot's amendment would have made it a crime to communicate false election related information with the intent to effectively deny someone else's right to vote.

[Footnote 24: 393 U.S. 23, 30 (1968).]

At the markup, Mr. Davis said `[t]he principal concern with [the] amendment is that I believe it would shift the focus of prosecution from the intent to the effect of the wrongful action.' That statement does not withstand examination. If the bill's subject were people who act `with intent to prevent another person from effectively exercising the right to vote,' anyone with the intent to effectively deny the right to vote would be subject to prosecution. The amendment would not alter the requirement that intent be present. We do not understand why anyone would oppose an amendment prohibiting people from acting `with intent to prevent another person from effectively exercising the right to vote.' If someone communicates false election related information with the intent to effectively negate someone else's legal vote, they should also be punished with up to five years in prison.

The Fifteenth Amendment itself states that `The right of citizens of the United States to vote shall not be denied or abridged . . . on account of race.' 25

[Footnote] One of the most respected law professors in the country, John Hart Ely, has written that he was unable `to read the Fifteenth Amendment as meaning anything other than that no one person's vote is to be intentionally made less effective than another's because of his race or color.' 26

[Footnote]

[Footnote 25: U.S. Const. Amendment XV.]

[Footnote 26: John Hart Ely, `Gerrymanders: The Good, the Bad, and the Ugly,' 50 Stan. L. Rev. 607, 632 (1998) (emphasis added).]

Chairman Conyers ruled several other amendments non-germane, including an amendment offered by Mr. Forbes that would have provided that `If the offense results in voting in a Federal election by more than 10 persons who are not citizens of the United States, the offender shall be fined under this title or imprisoned not more than 10 years, or both.' Other amendments Chairman Conyers ruled non-germane included an amendment offered by Mr. Feeney that would have created a uniform system of voting eligibility verification and an amendment offered by Mr. King that would have required the Department of Justice to conduct a study on the feasibility of the creation of a national citizenship database for use in verifying voting eligibility and preventing voting fraud. We believe that all of these amendments were germane. They would have improved the bill by addressing the serious problem of noncitizen voting more directly and comprehensively. We all want to eliminate the problem of voter fraud and we are disappointed that the Democrats opposed our efforts to strengthen this bill.
Lamar Smith.
Steve Chabot.
Ric Keller.
Tom Feeney.
Trent Franks.

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