Sec. 2. Findings

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Congress makes the following findings: The right to vote by casting a ballot for one's preferred candidate is a fundamental right accorded to United States citizens by the Constitution, and the unimpeded exercise of this right is essential to the functioning of our democracy. Historically, certain citizens, especially racial, ethnic, and language minorities, were prevented from voting because of significant barriers such as literacy tests, poll taxes, and property ownership requirements.

Some of these barriers were removed by the 15th, 19th, and 24th Amendments to the Constitution. Despite the elimination of some of these barriers to the polls, the integrity of today's elections is threatened by newer tactics aimed at suppressing voter turnout. These tactics include deceptive practices , which involve the dissemination of false or misleading information intended to prevent voters from casting their ballots, prevent voters from voting for the candidate of their choice, intimidate the electorate, and undermine the integrity of the electoral process.

Furthermore, since the decision in Shelby County v. Holder in which the Supreme Court struck down the coverage formula used by the Voting Rights Act of 1965 to determine which States with a history of racial discrimination must affirmatively receive government permission before changing local voting laws, there have been Federal court decisions finding or affirming that States or localities intentionally discriminated against African Americans and other voters of color. Denials of the right to vote, and deceptive practices designed to prevent members of racial, ethnic, and language minorities from exercising that right, are an outgrowth of discriminatory history, including slavery.

Measures to combat denials of that right are a legitimate exercise of congressional power under article I, section 4 and article II, section 1 of, and the 14th and 15th Amendments to, the United States Constitution. For the last few decades, there have been a number of instances of deceptive or intimidating practices aimed towards suppressing minority access to the voting booth that demonstrates the need for strengthened protections. In addition, in at least one instance in 1990, thousands of voters reportedly received postcards providing false information about voter eligibility and warnings about criminal penalties for voter fraud.

Most of the voters who received the postcards were African American. During the 2004 elections, Native American voters in South Dakota reported being required to provide photographic identification in order to vote, despite the fact that neither State nor Federal law required such identification. In the 2006 midterm elections, thousands of Latino voters received mailings warning them in Spanish that voting in a Federal election as an immigrant could result in incarceration—despite the fact that any immigrant who is a naturalized citizen of the United States has the same right to vote as any other citizen.

In 2008, fliers were distributed in predominantly African American neighborhoods falsely warning that people with outstanding warrants or unpaid parking tickets could be arrested if they showed up at the polls on Election Day. In the same year, there were reports of people receiving text messages on Election Day asking them to wait until the following day to vote. In 2012, there were reports of voters receiving calls falsely informing them that they could vote via telephone. In the 2016 elections, there were reports of students receiving fliers stating that in order to vote in a local precinct, they had to pay to change their driver’s license and re-register vehicles in the city in which the precinct was located.

Those responsible for these and similar efforts should be held accountable, and civil and criminal penalties should be available to punish anyone who seeks to keep voters away from the polls by providing false information. Moreover, the Federal Government should help correct such false information in order to assist voters in exercising their right to vote without confusion and to preserve the integrity of the electoral process. The Federal Government has a compelling interest in protecting voters from confusion and undue influence and in preserving the integrity of its election process .

Burson v. Freeman, 504 U.S. 191, 199 (1992). The First Amendment does not preclude the regulation of some intentionally false speech, even if it is political in nature. As the Supreme Court of the United States has recognized, [t]hat speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected … .

Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. . Garrison v. Louisiana, 379 U.S. 64, 75 (1964).

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504 U.S. 191
379 U.S. 64

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Sec. 2

Findings

SCOTUS504 U.S. 191

SCOTUS379 U.S. 64

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