tv [untitled] June 26, 2012 11:00am-11:30am EDT
their own, then they are challenged at the voting booth as not being a resident or eligible to vote. and this is something that we have been seeing that also has been on the rise that we've encountered through election protection particularly even in the last federal elections especially in 2008 we encount encountered a lot of voter caging that was occurring in michigan, in ohio, the challenges that were happening particularly because of the foreclosure crisis that is ongoing and this is particularly sad because we know we're in such a stark economic situation and we are getting better. however, people are still having challenges in the housing arena and therefore people are taking advantage of that situation and claiming that simply because a person or a family may be initiated a foreclosure and may be in the process of a foreclosure proceedings that they therefore are not eligible
to vote. that could not be further from the truth. >> on the evidence of the mail having been returned. it would also signify a student away at school, a soldier -- >> it could signify numerous things. >> there could be any number of reasons. >> that's right. >> tpolitical organizations do t targeting specific neighborhoods in order to challenge the vote out of that neighborhood and they choose neighborhoods that are associated with strong votes for the opposing party, correct? >> that's correct. that's correct. >> would this bear on the voter caging problem? >> this particular bill? >> yes. >> well, this bill would address on some level the false challenges to inhibiting registration. it doesn't address as much as we need to voter caging.
that is one area in which we also support other type of legislation that you have introduced and we supported in the past. >> i wanted to be clear that this did not displace legislation. >> it does not. >> very good. >> we still support it. >> i yield my time back. >> the chair will note that no one displaces sheldon whitehouse or his legislation. >> ms. house, i want to ask if you want to respond to mr. park's assertion that federal law in this area is sufficient as it now exists or at least could cover much or most of the conduct that you were concerned about. >> sure. mr. park indicated correctly level b is civil and so it does not criminalize or address deceptive tactics and neither do other federal statutes. in fact, there are other conspiracy laws dealing with intimidation and they have not
been utilized in a manner necessary to get to specific issues regarding flyers such as this. >> is there nonutilization due to the law being inadequate or -- >> it's inadequate. it's not been -- it's both inadequate and not been utilized by law enforcement authority in order to prosecute these type of claims. the department of justice indicated as such that this is why they support this type of legislation because it would enable them to be very directed in addressing these types of deceptive tactics and flyers. >> with regard to state law, any time i look at expanding our existing body of federal law, i tend to ask the question is state law adequate particularly if we're talking about a criminal provision. when you referred to the fact that the state law isn't covering it, is this because state laws are themselves inadequate or the manner of
their implementation that is inadequate? >> it's both. for the most part they are inadequate. i think i misstated earlier there are not ten deceptive practices bills. there's a number of states upwards of eight or so that actually have types of either fraud or statutes in place that could be utilized to prosecute deceptive practices. garden variety fraud practices. they're not being utilized in that manner and there's only a couple that has specific deceptive practices on the books and they still are not clear in their definition of exactly what types of deceptive practices would be covered under that and therefore it does make it very difficult to prosecute and also it does not necessarily provide the required corrective action component that we are suggesting here today within senate bill 1994. >> do you believe that -- let's suppose states were to adopt those. is it your position that states
should not be the ones focused on protecting federal elections and protecting honesty and integrity and that should be a federal protection because we talk about federal offices. >> you're asking if the states do everything and therefore we don't need federal law? >> could states -- if you had states adopting legislation that was more robust, would you still prefer to have federal legislation on the books to cover elections involving federal offices? >> yes. we are working on both fronts. we are working both to try to work in the states to provide more robust statutes in the state legislatures but we also believe that it's necessary on the federal level to have a more uniform requirement. additionally, it is not always the case that state and local authorities will prosecute. nor is it the case that they
also provide the correct information to disseminate in we have deceptive flyers and that's what we rely on the federal government to do especially when you have targeted communities, particularly communities of colors and those that are vulnerable that may not otherwise be protected by the state and local authorities. >> okay. do you care to respond to mr. park's comments regarding the concerns that he's raised regarding the private right of action and how to that might be abused? >> i think that as an attorney myself, private right of action is a necessary vehicle in order to protect and ensure that people's rights are protected and it's not -- i think any law can be abused. i don't think it's justifiable that because there's potential for abuse you should not enact a law or provide a provision that could be so effective in protecting a fundamental right which is the right to vote. >> i understand that.
i mean, you would agree with the fact as lawmakers we have to look at each bill that we look at and try to figure out whether we would be creating as many or more problems as we're solving with it. that's a legitimate thing. >> that's a legitimate question to ask. i think that in this regard we don't feel that we would be creating more harm than good. in fact, it would be the complete opposite. in fact, we would be really providing those vehicles and a vehicle to deter and stop some of these deceptive tactics that are taking place across the country. >> i see my time has expired. thank you very much. thank you, chairman. >> thank you, senator lee. first, i have a statement i'm going to put in a record. i've cared long about this. in fact, i am the lead co-sponsor with senator cardin on the legislation. it's absolutely despicable what some people do and to say that the first amendment protects
anything but threats doesn't make any sense whatsoever. the first amendment is not absolute. our supreme court should know that also. no amendment is absolute. we have libel laws. we have anti-pornography laws. i take it you support some of these things, mr. park? you support anti-pornography laws? >> yes, senator schumer. >> you support libel laws? >> yes, senator schumer. >> the first amendment is not absolute. we all know that. by the way, i believe that of all of the amendments. balancing is very important. it's easy to be an absolutist and it's wrong because life is shades of gray in just about every area and in our constitution as well. there are always balancing
tests. i just think some of these practices are just despicable. sending on what looks like official letterhead. your date of voting has changed to wednesday for democrats and not republicans. to me, people like this belong in jail because they are violating the fabric of our democracy. i find them despicable. one thing we face is less and less faith in it and one of the reasons is because people have found ways to interfere with democracy that nobody would support. there's a movement to suppress voting. alec and other groups have done this. again i find that to be corrosive of democracy. so no amendment is absolute. obviously there's a 15th
amendment. there's a 1st amendment. i guess my question to mr. park is you would agree that a specific threat, it's verbal, if you vote, i'm going to shoot you. okay. let's take a bold, horrible one. that could be prohibited federally, is that true? >> i think it could be prohibited under existing law. >> well maybe it could. let's say some state doesn't have a law that covers that specific situation just hypothetically. i'm asking you, could the 15th amendment -- would the 15th amendment trump the first amendment because obviously it's just speech but speech that we've always prohibited in that instance. assuming the state had no law. let's just agree for the sake of argument. >> assuming there was neither federal or state law, i think
that you could criminalize that conduct. >> okay. so then the question is the conduct we're talking about prohibiting here which is not direct threat but a step down, two steps down, you can define it as you will, why is that protected or why does not the 15th amendment trump that type of activity as well? i would like to hear that from you. some people have talked in similar questions but i would like to hear a direct answer on that. it has the same effect, by the way, of prohibiting people from voting and getting them not to vote and there are stringent requirements in the bill by deliberately lying to them. no intent to inform or anything else. >> i understand that senator schumer. my argument was that existing federal law which is
underutilized and provides the possibility of deterring and punishing. >> i understand that, sir. my question to you is whether this law is unconstitutional or violative of the first amendment. you are arguing that it is, i presume. >> my argument is that it raises serious constitutional concerns in that it may chill protected speech and we don't know yet what the united states supreme court is going to do in united states versus alvarez, the stolen valor case. it will speak one way or another and may provide substantial guidance on the ability of congress to punish speech that is not truthful. >> we're not disputing that the speech is not truthful. we're not disputing that it was done maliciously. we're not disputing that the intent was to prevent people from voting. to me the distinction on a constitutional basis between the
direct threat, which we would all agree would be constitutional constitutionally law going after that would be constitutionally protected and this is not a real distinction. it's not a difference that makes a difference as professors used to say at law school. does either ms. house or ms. flanagan want to comment on that? >> this is an important discussion. we're talking about lying. we're talking about intentionally lying to deceive an eligible voter from participating in an election. our most fundamental right to access our democracy. i don't think that this can or should be protected. as you said in your opening comments, we can't yell fire in a crowded theater. >> falsely. the >> there are limitations.
false information. lies about our right to vote cannot be protected. we've got to do something about it. i think what's important about this bill is not just penalizing those actions but doing something about it by requiring this corrective action so we have an immediate response and by gathering more information through the reporting requirement. groups like ours, we've been researching and talking with voters over the years but we need to create a congressional record so we can truly make the change that's necessary. >> all right. ms. house? >> i would simply agree with what ms. flanagan has stated. we completely believe that this is not protected speech, that deceptive flyers and tactics cannot go unaccounted for and not addressed. we are targeting these vulnerable communities and so i don't know there's much else to
say other than this has to be addressed. we are talking about protecting a fundamental right. if we simply state that we cannot provide for this protection of a fundamental right because we are worried that somewhere down the line there may be a possibility that the speech may be chilled is not acceptable because there are limitations on speech. this is false speech. this is false claims, misrepresentations, misinformation. therefore it's not protected. we do believe that the supreme court precedent to substantiate that and even with alvaf erez coming in the near future, that case does provide guidance as to what we're talking about within this bill. we indeed provide that there has to be an intent. the information has to be shown to be materially false.
knowingly. so therefore that actually still is within the guidelines of what we're talking about in alvarez and either way it goes. so regardless, we do believe that this is something -- this is a bill that we can move forward with and that would not only protect the fundamental right to vote but not chill political speech. >> thank you, ms. house. you can also make the argument against any intentional tort or in a criminal law with intend, well, you're going to chill something because some people might do something carelessly or whatever. that's why we have intent. if you don't believe intent works, you're going to throw out 20% of the laws in this country. i think it's people who -- some of the people who argue this are not really appalled by the kind of behavior we've talked about
and so they hide behind an example that wouldn't fit under the intentional clause. >> if i could add briefly, i want to be very clear that lawyers committee always supported the right of freedom of speech. this is not about our preference of one particular amendment over another. we are here because we believe of the importance of enforcing all of these rights and this right is fundamental. we do have limitations on false speech. >> thank you all. i'm goi i want to thank senator cardin for his leadership and i'm proud to be his partner in this effort. >> thank you, senator schumer. i want to thank you for your testimony which i had a chance to read. i want to thank the lawyers committee for the great work it has done since president kennedy urged its formation now a generation ago and to thank you for the work you have done to
defend the rights of voters across america and to ensure section 5 of the voters rights act endures. you have also sought compliance with the national registration act resulting in hundreds of thousands of citizens being able to vote. you made reference to recent techniques to advance voter suppression in particularly chilling or disturbing ways. i'm interesting ways that new media including social media has been used to suppress voter participation in very targeted ways. would you talk in more detail about that and about those trends and what you think we can and should be doing to deter that? >> i'm happy to. once again, we've addressed some of these issues in our report that we'll be releasing. with the new technology, facebook, twitter, something that i barely know much about, but my son will teach me very soon, you know, text messaging going out across the country
which we noticed particularly targeted against students, those utilizing this type of technology on the internet we've seen messages going out across college campuses giving false information because there is an ability to reach these wider audiences, it's particularly distressing and much more difficult to try to stop some of these types of tactics if we don't have laws that are in place that are specific to these types of acts. they are really targeted particularly those communities that are really utilizing these types of media so as i mentioned, facebook and twitter accounts and smartphones and text messaging so we have taken the deliberate action to make sure that we are trying our best to get the right information if we're finding out about these incidents through election
protection and even with a new app coming out on smartphone to make sure that we have an ability to get information to those who have this this is something that we encountered and we're trying to address this as best as possible. >> the good old fashioned practices of voter misinformation and vote suppression through flyers or hand contributed leaflets has continued in modern age. >> it's continued in modern age. same type of misinformation now just through the internet and now through other types of social media. >> an example that was cited in prepared testimony of students at george mason thousands of them receives mistaken information about the timing of the vote. have there been other examples of that or is that the sole example in the country? >> i believe there are other examples. i can't pull them through memory at the moment. i apologize. there are other examples. that is just one of them that we wanted to particularly illuminate. i will say that i think we
mentioned corrective information was sent out in order to make sure that the students did get the right information and that's something we want to encourage and happen but it's not guaranteed. and so therefore that's why we need to have these types of legislation to mandate that corrective action by different authorities. >> i also understand there's been more active in some cases more aggressive use of challengers at polling places specifically targeted at raising concerns or fears among those voting in particular district areas. can you speak more about that? >> absolutely. there has been this wave of type of voter suppression tactics that have been taking place across the country and deceptive tactics is one of them. we have seen other types of intimidation tactics and people challenged at the polling place is distressing again targeted at certain communities, communities of color, immigrant communities,
targeted at students. what they do is we know of an organization true to vote who has already determined that they are going to send a million people across the country to be challengers and to specifically challenge people at the polling place as they attempt to exercise this right to vote. it puts in place a whole round of restrictions or requirements that a voter or hurdles they have to jump through to vote. under many state laws once you've been challenged, you have to provide additional state i.d. or additional identification and fortunately we do have the help america vote which does allow for people if they don't have necessary identification, that they are allowed to vote by provisional ballot. because of loopholes in place in some state laws, they're not able to necessarily have that vote counted.
it's not guaranteed. the reason that these challenges are put in place is in order to create that type of confusion and because people are not aware of the types of i.d.s and other types of information they need to have in order to vote, and it creates this contusion at the polling place and could change the election because you have many voters who thought they would have their vote counted but no longer are and that's a very distinct form of voter suppression that has to be addressed. >> last, if i might, the help america vote act, the ability to vote on a provisional ballot and demanding identification and proof of citizenship and so far, the argument for why that's legitimate or necessary activity is allegations of widespread voter impersonation fraud. how many demonstrated proven cases of voter impersonation fraud are there? how widespread a problem is this in keeping our electoral process
legitimate, free, fair, open? >> the numbers are so minimal that it's not massive. it's not widespread and i think even senator leahy indicated earlier even during the bush administration, the department of justice conducted its own investigation over a period of five years and did not find any type of massive voter impersonation voter fraud taking place across the country. what was found is people had multiple registrations only because they moved or it was unintentional or there was administrative errors that were encountered done by election officials so this was not an attempt particularly of immigrants or those ineligible to vote to try to commit voter fraud at the polling place, which again is not reasonable
considering that anyone if they are not -- if they are undocumented to go to the polling place and subject yourself to potential to be deported over voting, that is not a reasonable assumption or claim that i think is being made to state that there's attempts at massive voter fraud. >> thank you for your testimony today. in closing, i think we have a balance we have to strike. i think we need to be vigorous and engaged in preventing disenfranchisement of those who are entitled to vote and who we want to vote by restrictive i.d. laws and strike a fair and appropriate balance where there are few cases of demonstrated voter fraud and we should investigate time and resources in making sure that the process of voting is free and fair and open and we hold ourselves out to the rest of the world as a beacon of democracy and i think we can all agree that what we should be doing is protecting the right to vote and ensuring that everyone who has a right to
vote is able to exercise that franchise freely. thank you to all members of the panel and thank you senator schumer for holding the hearing open for a few moments so i could join you. >> it was worth it given your questions. our legislation applies no matter who is targeted. poorest people in town or richest people in town if you do these things for whatever your political purpose that would apply. with that, i want to thank our witnesses. this is important stuff. it goes to the well spring of our democracy and the hearing record will be open for seven days for people to submit statements and additional questions for the witnesses. so thank you. the hearing is adjourned.
coming up this afternoon live on c-span3, new hampshire senator kelly ayotte will give the keynote address examining the implications of sequestration. it would cut spending on national defense programs by about $500 billion starting in january. she serves as ranking member of the senate arms services readiness subcommittee. we'll have panel discussions on the topic coming up live here on c-span3 beginning at 1:30 p.m. eastern. later, james mann talks
about president obama's foreign policy decisions and profiles the people who advise him. the event is hosted by politics and pros in washington d.c. james mann, former foreign correspondent for "the los angeles times" is author and residence at john hopkins school of advanced studies. he's author of "bush's war cabinet" and "rebellion of ronald reagan." we'll have his remarks live at 7:00 eastern on our website, booktv.org. july 7th and 8th, book tv and american history tv explore hi heritage of lincoln university. >> this is probably our most famous book. this is the one we like to show to visitors when they come into the archives here. this