January 31, 2007

Sens. Obama and Schumer Introduce "The Deceptive Practices and Voter Intimidation Prevention Act of 2007"

You can find the text of the bill here [updated link]. [Disclosure: I consulted with Sen. Obama's office on the this bill.] Among other things (such as setting up a task force and requiring the production of reports on deceptive voter practices), this bill would do too main things: (1) it would criminalize knowlingly making certain false speech in connection with elections, such as fraudulently giving information about polling place locations. (2) It would allow a private party to seek an injunction in federal court to stop the giving of such fraudulent information.

Is this bill likely to pass? I don't know. Certainly the fact that it is being introduced by Democrats, with findings focused mainly on acts of voter suppression that Democrats in the past have highlighted, will make the bill appealing to many Democrats. I wonder whether Republicans will come on board. In some sense, this is a "voting integrity" bill, an issue that has been trumpeted by many Republicans. But it targets speech, not voters who vote illegally. We'll see if this is perceived as a partisan or bipartisan bill.

I think this bill, if it passed, would likely beat a constitutional challenge under the First Amendment, especially that part of the bill that would punish violators after the fact for fraudulent conduct. No doubt the ability of a court to grant an injunction would be challenged as a prior restraint of speech, and that raises a more difficult question. There's a discussion of these issues in Chapter 11 of the Lowenstein and Hasen casebook in connection with Ohio's law and other state laws limiting knowingly false campaign speech. [Note and update: This last paragraph was edited for clarity. In addition, I forgot to link to this NY Times editorial on the bill.]

Posted by Rick Hasen at January 31, 2007 10:10 AM