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Lawyers' Committee Testifies Before Maryland Senate on Deceptive Practices

February 16, 2012

On Wednesday, February 16th, Voting Rights Project Co-Director Marcia Johnson Blanco delivered the following testimony before the Maryland State Senate Committee on Education, Health and Environmental Affairs regarding the State's proposed Voters' Rights Protection Act:

My name is Marcia Johnson-Blanco, and I am the co-Director of the Voting Rights Project for the Lawyers’ Committee for Civil Rights Under Law.  I am pleased to be here with you today to talk about the Voter’s Rights Protection Act of 2012.  The Lawyers’ Committee is a nonpartisan, nonprofit organization, formed in 1963 at the request of John F. Kennedy to involve the private bar in providing legal services to address racial discrimination.  The mission of the Lawyers’ Committee is to secure – through the law – equal justice under law by marshaling the pro bono resources of the bar for litigation, public policy advocacy, and other forms of services by lawyers to the cause of civil rights.  Central to the mission of our organization is ensuring that the right to vote is unimpeded and that all eligible Americans are able to freely exercise this most fundamental right.   

Unfortunately, almost fifty years after the passage of the Voting Rights Act, historically disenfranchised voters continue to be targets of deceptive practices aimed at keeping them from exercising their right to vote.  These fraudulent acts include the dissemination of false or misleading information about voter qualifications, false information about the time, place, or manner of voting, and threats to voters at a polling place itself.  These suppressive tactics have become more sophisticated and nuanced employing modern technology to target certain voters and skew election results.  Targeted voters – predominantly minorities, elderly, student voters, low-income, and individuals with disabilities – continue to be affected by those who wish to intimidate these voters or trick them into not voting.  These practices remain all too common in modern American elections.  The result: eligible voters are prevented from casting a ballot and election outcomes are affected. 

Conduct that intentionally impedes, hinders, or prevents an individual from casting his or her vote on Election Day is unconscionable.  It is essential that laws are in place which prevent, punish, and deter the sort of voter manipulation and deception we have uncovered during our leadership in the Election Protection Coalition.  The Voting Rights Project of the Lawyers’ Committee spearheads the national Election Protection Coalition, the largest non-partisan voter protection program in the country.  It organizes a comprehensive and proactive campaign to ensure that all eligible voters are able to cast a meaningful ballot both through an assistance hotline, 866-OUR-VOTE, the nation’s largest voter services hotline, and through field programs in 20 states including Maryland.  The Election Protection Legal Committees (EPLCs) organizing our field programs meet with election officials, provides support to the civic participation activities of non-partisan grassroots organizations, and creates valuable voter education and voter protection materials and resources. 

Since the inception of the 1-866-OUR-VOTE hotline, volunteers have responded to over 500,000 calls from voters across the country, including over 240,000 during the 2008 election cycle.  Information from calls into the hotline and reports collected at the polling place are logged into www.ourvotelive.org, the coalition’s web based database.  The stories that make up over 100,000 reports in our database paint the most complete picture available of the American voting experience from the perspective of the voter.  This leadership has provided us with detailed knowledge of the problems voters face across the country, and it is that experience that I will draw from in my testimony today.  The following are real examples of the type of deceptive practices that voters have encountered in recent elections:–

 

  • Men in official attire asking voters for identification.  In 2003, men with clipboards bearing official-looking insignias driving cars with decals resembling those of federal agencies were dispatched in black neighborhoods in Philadelphia to ask voters for identification.  In a post-election poll of 1000 African-American voters, seven percent had encountered such efforts.
     
  • Bogus election regulation fliers. During the 2004 elections, flyers in Milwaukee, Wisconsin purportedly from the “Milwaukee Black Voters League” were distributed in minority neighborhoods claiming, “If you’ve already voted in any election this year, you can’t vote in the presidential election; If anybody in your family has ever been found guilty of anything, you can’t vote in the presidential election; If you violate any of these laws, you can get ten years in prison and your children will get taken away from you.”
     
  • Fliers advertising the wrong election date. In 2008 flyers purporting to be from the Virginia State Board of Election were distributed in the southern part of the state as well as on the campus of George Mason University falsely stating that, due to larger than expected turnout, “[a]ll Republican party supporters and independent voters supporting Republican candidates shall vote on November 4th…All Democratic party supporters and independent voters supporting Democratic candidates shall vote on November 5th.”
     
  • Deceptive online messages.  In 2008 an email was circulated at 1:16am on Election Day to students and staff at George Mason University, purportedly from Provost Peter Stearns, misinforming them that the election had been postponed until Wednesday.  Later, Stearns sent an email that his account had been hacked and informing students the election would take place that day as planned.
     
  • Facebook messages.  A pastor at a church in Walnut MS, posted false information on his Facebook page in 2011 stating, “I just heard a public service announcement. Because of amendment 26 [the Mississippi Life Begins at the Moment of Fertilization Amendment] and the anticipation of a record turnout, the Secretary of State’s office has had to devise a plan as to how to handle the record numbers. The Secretary of State office just announced that if you are voting YES on Ms26, then you are to vote on Tuesday Nov 8th. If you are voting NO on Ms26, then they ask that you wait until Wednesday Nov 9th to cast your vote.”
     
  • Videotaping voters at polling places.  In 2010, an assigned Republican poll watcher in Pima County, Arizona videotaped voters inside a polling location and became confrontational with an Election Protection volunteer who attempted to follow up on voter complaints.  Election Protection contacted the police and the Secretary of State’s office.  After several hours, the Secretary of State eventually ordered the removal of the poll watcher.
     
  • Deceptive phone calls to voters.  As you are no doubt aware, during Election Day in 2010, targeted minority households in Maryland received recorded calls stating, "Hello. I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met. The polls were correct, and we took it back. We’re okay. Relax. Everything’s fine. The only thing left is to watch it on TV tonight. Congratulations, and thank you."  It was later discovered that these calls were paid for by aides to the Ehrlich campaign in the gubernatorial contest. 

 

Deceptive practices take many different forms, and it is essential that reform efforts take into account the different ways deceptive practices can manifest to deceive or confuse voters and keep them from casting their ballots.  Laws prohibiting deceptive practices must be broad enough to encompass the many techniques and means that may be employed to disseminate false election information or to intimidate voters. 

It is noteworthy that one of the perpetrators of the deceptive phone calls in this state was convicted under the existing election laws of Maryland.  That is a strong testament to the commitment of this legislature to enacting laws that meaningfully protect voters from fraudulent election practices and of the Attorney Generally in the vigorous prosecution of those laws.  However, deceptive practices take many different forms and it is essential that the laws take into account the various ways individuals use false election information to deceive or confuse voters.  That is why we believe that, in addition to the statute used to convict in the aforementioned case – which prohibits the use of fraud to influence a voter’s decision of whether or not to go to the polls – Maryland law should be crafted in a way that protects voters against the specific conduct at issue, which can be subtle and sometimes sophisticated in the way false information is used to confuse or intimidate voters.  

Sometimes such acts may not necessarily rise to the level of fraud under Maryland law, and other times such acts may not influence a voter’s decision of whether or not to go to the polls.  Unfortunately, such conduct may still intend to mislead voters and prevent them from voting.  For example, providing false information about polling place locations or false candidate endorsements may result in the voter not voting for the candidate of his or her choice. 

The Lawyers’ Committee is supportive of the goals of the Voter's Rights Protection Act, but we believe that the Act could be even more effective in combating deceptive practices if additional provisions were added to the law expanding the scope of conduct that is prohibited.  We recommend the following additional protections:    

 

  • An additional prohibition making it unlawful, within 90 days before an election, to intentionally communicate or cause to be communicated by any means (including written, electronic, or telephonic communications) materially false information regarding the time, place, or manner of an election, or the qualifications for or restrictions on voter eligibility (including any criminal penalties associated with voting or voter registration status) for any such election with the intent to prevent a voter from exercising the right to vote in such election, when the person knows such information is false. 
     
  • An additional prohibition making it unlawful, within 90 days before an election, to make to the public, or cause to be made to the public, a materially false statement about an endorsement if such person intends to mislead any voter and knows that the statement is false. 

 

Extending the scope of prohibited activity to false communications about time, place, and manner of elections and voter qualifications targets the type of conduct we’ve seen Maryland and elsewhere such as  misleading robocalls, flyers, fake candidate endorsements, and other types of messaging devices that are intended to suppress or confuse voters.  Also, an effective law should extend to the different ways that false information can be communicated – such as written, electronic, and telephonic.

 We also believe that any reform should include effective enforcement mechanisms.  These are absolutely critical to protect voters and to provide meaningful remedies.  These should include the following:

 

  • Directing the appropriate state agency to take corrective action by providing affected voters or communities of voters with correct election information.
     
  • Providing a private right of action so victims can seek redress immediately and provide a defense and deterrence against deceptive practices.

 

It is also imperative that there are strong mechanisms for enforcement and remedy.  That is why we support the inclusion of a private right of action, so that aggrieved voters can hold the perpetrators of these election crimes responsible.  We also strongly support the ability of the appropriate law enforcement authority to take corrective action so that voters affected by deceptive practices are given accurate election information.  While instituting civil and criminal penalties is necessary to deter and prevent deceptive voter practices, there must also be an immediate remedy available to voters in which accurate election information is provided so that they are actually able to freely cast their ballot in the election.

Every Maryland voter has the right to a free and fair democratic process.  Deceptive voter practices have no place in Maryland elections and should be outlawed.  The Voter’s Rights Protection Act is a step in the right direction.  We believe the bill would be strengthened if these additional reforms are adopted.

Thank you for the opportunity to testify here before you today.  I am available for any questions.  

 

To download a .pdf version of Marcia's testimony, please click here.