Indiana Law Review


Voter Deception

Gilda R. Daniels"

Abstract

In our recent electoral history, deceptive practices have been utilized

to suppress votes in an attempt to affect election results. In most major

elections, citizens endure warnings of arrest, deportation, and even

violence if they attempt to vote. In many instances, these warnings are
part of a larger scheme to suppress particular voters, whom I call
"unwanted voters," from exercising the franchise. Recent advancements

in technology provide additional opportunities for persons to deceive

voters, such as calls alerting citizens that Republicans (Whites) vote on

Tuesday and Democrats vote (Blacks) on Wednesday.

In spite ofthis resurgence ofdeception, the statutes that are available

for enforcement have in many instances remained dormant. Even worse,
they are sometimes used against the very community that they were
originally written to protect. This dormancy has revealed a need for
clarity. This article exposes the deficiencies in the current state of the

law governing voter intimidation and deceptive practices. Moreover, it

attempts to correct those deficiencies within the confines of the

Constitutional framework.

Introduction

Because [of] the confusion caused by unexpected heavy voter

registration, voters are asked to apply to thefollowing schedule:

Republican voters are asked to vote at your assigned location on
Tuesday.

Democratic voters are asked to vote at your assigned location on
Wednesday.
Thankyouforyour cooperation, and remember voting is a privilege.

—Franklin County, Where Government Works 1

* Assistant Professor, University of Baltimore School of Law. I would like to thank the

faculty at the University ofBaltimore School ofLaw, the Southeastern Association ofLaw Schools
(SEALS) New Scholars Workshop, and particularly Professor William Funk from Lewis & Clark
Law School, who mentored me through the SEALS process; the Mid-Atlantic People of Color
Legal Scholarship Conference, Professors Henry Chambers from Richmond School of Law;
Cassandra Jones Harvard, University of Baltimore School of Law; and Muriel Morisey, Temple

University Beasley School ofLaw, for their helpful comments. Special thanks to the Indiana Law
Review for their patience and hard work on this Article. Finally, I would like to thank my
wonderful research assistants, Bjorn Thorstensen and Anne Wilkinson.

1 . National Campaign for Fair Elections, Examples of Deceptive Flyers 2004, at

1, 3, available at http://lccr.3cdn.net/f51celb593630cc86c_a7m6b9axu.pdf. In 2004, a flyer

containing this information was distributed in Franklin County, Ohio.



344 INDIANA LAW REVIEW [Vol. 43:343

In 2006, on Election Day in Prince George's County, Maryland, which is
predominately African American,

2
voters arriving at the polls received a voting

guide announcing that prominent African Americans had endorsed the

Republican candidates, including an African American U.S. Senate candidate.3

The voting guide falsely suggested4 that prominent Maryland Democrats were
endorsing Republican candidates in the hotly contested gubernatorial and U.S.

Senate election.
5
After the election, newly elected Senator Benjamin L. Cardin,

whom the African Americans had actually endorsed, testified before the U.S.
Senate Judiciary Committee regarding this false campaign literature and urged

the U.S. Attorney General to investigate.
6 The Department of Justice, however,

did not pursue the matter. Unfortunately, this is symptomatic of most claims

involving deceptive practices.

In the last half century, the U.S. Congress has journeyed into the world of

2. U.S. Census Bureau, State&CountyQuickFacts: Prince George's County, Md.
(2008), http ://quickfacts.census.gov/qfd/states/24/2403 3 .html.

3. National Campaign for Fair Elections.org, Examples of Deceptive Flyers

2006, at 1, 1, available at http://lccr.3cdn.net/58d2ee098f70fd887b_vom6bxgc8.pdf. The guide

was entitled "Ehrlich-Steele Democrats" and labeled an "Official Voter Guide." On the cover

were three prominent African American politicians: a former and the present county executive

and former congressman and President of the National Association for the Advancement of

Colored People (NAACP) Kweisi Mfume. Under their names read "[t]hese are OUR
choices." Id.', Prevention ofDeceptive Practices and Voter Intimidation in Federal Elections:

Hearing on S. 453 Before S. Comm. on the Judiciary, 110th Cong. (2007) (statement of Sen.

Cardin).

4. Laura Vozzella, Michael Steele 's Sorry. So Sorry., BALT. Sun, Mar. 4, 2009, at A2.

5. National Campaign for Fair Elections, supra note 3. These prominent African

Americans had endorsed candidate Ben Cardin for the U.S. Senate. See Matthew Hay Brown,

Senate Bill Outlaws Campaign Trickery; Cardin Backs Curb on Bogus Endorsements, Balt. Sun,

Feb. 1, 2007, at B5. Additionally, the guide included a "Democratic Sample Ballot" that included

the correct date and times for the elections and endorsed Democratic candidates on all

levels—local, county, state, and federal. National Campaign for Fair Elections, supra note
3, at 2. Yet, the guide neglected to endorse the Democratic candidates for governor and U.S.

Senate. Id. It endorsed the re-election of the Republican governor and the election of African

American Republican U.S. Senate candidate Michael Steele. Id. The guide included a notation that

Ehrlich and Steele campaigns had "Paid and Authorized" the publication and distribution of this

campaign literature. Id. Media accounts also attributed the Ehrlich and Steele campaigns to

knowingly distributing this false information. See, e.g., Paul Rogat Loeb, Editorial, 'Election

Fraud' Cry Useful Tool for GOP, BALT. Sun, Mar. 18, 2007, at A23 (alleging that the Steele

campaign bussed homeless men to hand out misleading flyers).

6. At the Senate hearing, Senator Cardin said that, "[t]his type of deceptive literature is

despicable and outrageous. It is clearly designed to mislead African-American voters about

prominent endorsements by well-respected politicians." Prevention ofDeceptive Practices and

Voter Intimidation in Federal Elections: Hearing on S. 453 Before S. Comm. on the Judiciary,

supra note 3 (statement of Sen. Cardin).



20 1 0] VOTER DECEPTION 345

election administration on three distinct and important occasions: the passage of

the Voting Rights Act of 1965 (VRA),
7
the National Voter Registration Act of

1993 (NVRA),8 and the Help America Vote Act (HAVA).9 Despite recent
debates, new legislation, and the continued enforcement of various voting
statutes, problems persist in the operation of our participatory democracy.

10

Legislation has done little to forward the debate on the preeminence and

resurgence of voter intimidation and deceptive tactics. The most recent
legislation, NVRA and HAVA, dealt primarily with election administration
issues, such as voter registration and machinery.

1

l

An overlooked area involving

7. The Voting Rights Act, 42 U.S.C. § 1 973 (2006). This Act, which has been heralded as

the most effective piece ofcongressional legislation in our nation's history, outlawed practices such

as literacy tests, empowered federal registrars to register citizens to vote, and gave the Attorney

General the power to bring widespread litigation instead ofthe piecemeal approach ofthe past. As

a result, wide disparities between Blacks and Whites in voter registration narrowed considerably

throughout the South and the number ofAfrican American elected officials increased tremendously.

See S. REP. 94-295, at 1 1 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 777 (noting that the VRA
was "hailed by many to be the most effective civil rights legislation ever passed" in this country).

8. 42 U.S.C. § 1973gg (2006). The stated purpose of the NVRA is to increase voter
registration and participation. Id. The law also provides uniform standards for maintaining the list

of registered voters, conducting voter purges and provides additional safeguards under which

registered voters would be able to vote notwithstanding a change in address in certain

circumstances. Id. § 1973gg-3.

9. Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (2002) (codified

at 42 U.S.C. §§ 15301-15545 (2006)). The stated purpose ofHAVA is
to establish a program to provide funds to States to replace punch card voting systems,

to establish the Election Assistance Commission to assist in the administration of

Federal elections and to otherwise provide assistance with the administration ofcertain

Federal election laws and programs, to establish minimum election administration

standards for States and units of local government with responsibility for the

administration of Federal elections, and for other purposes.

Id.

10. During the 2008 election, nonpartisan organizations chronicled numerous voting

irregularities in voter registration, felon disenfranchisement, long lines at the polls, poll watcher

challenges, unwarranted challenges to student voters, and deceptive practices. See, e.g., Hearing

on Lessons Learnedfrom the 2008 Election Before Subcomm. on Constitution, Civil Rights, and

Civil Liberties ofthe H. Comm. on the Judiciary, 1 1 1th Cong. 1 (2009) (statement ofTova Andrea

Wang, Vice President, Research, Common Cause); id. (statement of Hilary O. Shelton, Director,
Washington Bureau, NAACP); see also Protecting the Right to Vote: Oversight ofthe Department

ofJustice's Preparations for the 2008 General Election: Hearing Before S. Judiciary Comm.,

1 1 lth Cong. 1 (2008) (statement ofGilda R. Daniels, Assistant Professor, University of Baltimore

School of Law).

1 1

.

"HAVA defined minimum election administration standards that all states must follow,
notably in the areas ofvoter identification and database management." Debra Miiburg, Note, The

National Identification Debate: "Real ID " and Voter Identification, 3 1/S: J.L. & POL'YFOR INFO.
Soc'Y 443, 458 (2008); see also Bruce E. Cain, Election Administration: Still Broken After All



346 INDIANA LAW REVIEW [Vol. 43:343

voter access concerns the proliferation of deceptive acts and voter intimidation.

Each of these phenomena requires exemplification.
A person or group intentionally places an anonymous flyer in a mailbox,

leaves a voicemail message, distributes a campaign publication on Election Day,

or sends an email prior to early voting—all containing misleading and false
information. The information is often plausible: it could address the expected
massive turnout at an election and, thus, the need to extend voting to Tuesdays

for Republicans (Whites) and Wednesdays for Democrats (Blacks). 12

Deceptive practices tend to target racial and language minorities and are a

throwback to the post-Reconstruction, Jim Crow-era tactics that sought to deny

minority citizens the right to freely participate in the electoral process.
13

Voter

intimidation became a primary and deadly issue after the Civil War and during
Reconstruction,

14 when newly freed slaves were systematically denied their right

These Years, 8 ELECTION L.J. 219 (2009) (reviewing VOTING IN AMERICA, VOL. 3, AMERICAN

Voting Systems in Flux: Debacles, Dangers, and BraveNew Designs (Morgan E. Felchner
ed., 2008)); Daniel P. Tokaji, The Birth and Rebirth ofElection Administration, 6 ELECTION L.J.

1 1 8 (2007) (reviewing Roy G. Saltman, The History and Politics of Voting Technology:

In Quest of Integrity and Public Confidence (2006)).

12. See, e.g. , National Campaign for Fair Elections, supra note 1 . The now infamous

flyer from Franklin County, Ohio, pretended to come from the County Board of Elections urging

Republicans and Democrats to vote on different days; the Republican-designated day was the true

Election Day. Id. Deceptive election flyers often falsely indicate the wrong date for an election.

Id.; see also infra note 32 (showing a flyer distributed prior to the November 4, 2008 federal

election falsely alerting voters that in an emergency General Assembly session the Virginia

legislature "adopted the following [sic] emergency regulations to ease the load on local electoral

[sic] precincts and ensure a fair electoral process" that Republicans would vote on Tuesday,

November 4, and Democrats on Wednesday, November 5; the flyer was distributed in the

predominately minority areas ofHampton Roads, VA). Additionally, at George Mason University

in Fairfax, Virginia, observers described "official-looking flyers" stating that due to the projection

of high voter turnout, Democrats should vote the day after the general election, November 5.

Thomas Frank & Richard Wolf, Pranks, MischiefReach Higher Level at Colleges, USA Today,
Nov. 5, 2008, at 10A (detailing bogus emails sent to students at George Mason University stating

that voting on campus had been moved back one day and discussing problems at other campuses

such as Ohio State and Florida State where students received text messages to the same effect, and

at Virginia Tech, where students received mass-emails via Facebook regarding bogus changes to

voting schedules); see also Election Protection 2008: HelpingVoters Today, Modernizing

the System for Tomorrow, Preliminary Analysis of Voting Irregularities 12 (2008),

available at www.866ourvote.org/tools/documents/files/0077.pdf.

1 3

.

Alexander Keyssar, The Right to Vote: The Contested History of Democracy

in the United States 258-59 (2000) (describing tactics that segregationists used during the Jim

Crow era to "thwart" Black political participation, including literacy tests, grandfather clauses, poll

taxes, "understanding test[s]" purges and in some instances murder).

14. See, e.g., Tracy Campbell, Deliver the Vote: A History of Election Fraud, an
American Political Tradition—1 742-2004, at 46 (2005) (stating that in the mid- 1 800s violent
action meant to intimidate voters had reached disturbing levels); see also Gilda R. Daniels, A Vote



20 1 0] VOTER DECEPTION 347

to vote in Southern states through the use of violence and threatening tactics.
15

The South enacted measures, such as poll taxes, literacy tests, and all-White
primaries that would limit the effect of the new and populous electorate. 16

Efforts to disenfranchise African American voters persisted after the Civil War
to counter the efforts of newly freed slaves effort to obtain equal access to the

ballot.
* 7

Indeed, during the Civil Rights Movement, the primary disenfranchising

and intimidating efforts were organized around registering voters and providing

access to the electoral process. In 1 957, Dr. Martin Luther King, Jr., emphasized

the "conniving methods" that were used to prohibit Negroes from registering to

vote.
18
Although historical accounts ofvoter intimidation are often full ofdeath

threats and fear, today's intimidation and deception tend to exist in a less fatal

form, but continue to target minority communities.
19

Threats ofincarceration or

Delayed Is a Vote Denied: A Preemptive Approach to Eliminating Election Administration

Legislation that Disenfranchises Unwanted Voters, 47 U. LOUISVILLE L. REV. 57 (2008).

1 5

.

Rayford W. Logan, The Betrayal of the Negro: From Rutherford B. Hayes to

Woodrow Wilson 91 (Da Capo Press 1997) (1954). At the dawn of the twentieth century,
segregationists employed the country's most violent measures to ensure White political supremacy.

Id. In 1900, South Carolina Senator "Pitchfork" Ben Tillman, who led that state's push for

segregation, said, "[w]e have done our level best, ... we have scratched our heads to find out how

we could eliminate the last one of them. We stuffed ballot boxes. We shot them .... We are not
ashamed of it." Id.

16. Keyssar, supra note 13, at 1 1 1-12.

In short order, other states followed suit, adopting—in varying combinations—poll
taxes, cumulative poll taxes . . . literacy tests, secret ballot laws, lengthy residence

requirements, elaborate registration systems, confusing multiple voting-box

arrangements, and eventually, Democratic primaries restricted to white voters. Criminal

exclusion laws also were altered to disfranchise men convicted ofminor offenses, such

as vagrancy and bigamy.

Id.

1 7. See Erika Wood, Brennan Center for Justice, Restoring the Right to Vote 7-8,

available at http://www.soros.org/initiatives/usprograms/focus/justice/articles_publications/

publications/restoring_20080226/Brennan_RestoringVote_2008.pdf.

18. Dr. Martin Luther King, Jr., decried deceptive practices and intimidation in his Give Us

the Ballot speech. Dr. King stated: "[A]ll types of conniving methods are still being used to

prevent Negroes from becoming registered voters. The denial ofthis sacred right is a tragic betrayal

of the highest mandates of our democratic tradition." Dr. Martin Luther King, Jr., Give Us the

Ballot, Address at the Prayer Pilgrimage for Freedom (May 17, 1957), available at http://mlk-

kppO 1 .stanford.edu/primarydocuments/Vol4/ 1 7-May- 1 957_GivesUsTheBallot.pdf.

1 9. See, e.g. , NAT'L NETWORK FOR ELECTION REFORM, DECEPTIVE PRACTICES AND VOTER

Intimidation 1 , flva//a6/eo/http://www.nationalcampaignforfairelections.org/page/-/Deceptive%

20Practices%20Network%20Issue%20Paper.pdf (describing deceptive and intimidating voting

practices in minority communities including the following: In 1998, in South Carolina, a state

representative mailed 3,000 brochures to African American neighborhoods, claiming that law

enforcement agents would be "working" the election, and warning voters that "this election is not

worth going to jail!!!!!!"). The African American community has been and continues to be a



348 INDIANA LAW REVIEW [Vol. 43:343

deportation instead of death often accompany voter intimidation and deception
efforts.

20
For example, in 2006, in certain counties in Virginia with considerable

minority populations, voters received automated calls misinforming them that
they would be arrested ifthey tried to vote on Election Day and falsely reported
that their polling places had changed.

21
Consequently, conniving methods

continue to exist and adopt new forms.
In the 2008 federal election, the country also saw the proliferation ofthe use

of the Internet in both political campaigns
22

and advancing political

misinformation.
23 The government's inability to prosecute offenders for printed

flyers or other traditional methods ofconducting deceptive practices maximizes

the possibility of propagating misinformation via the Internet.
24

The resulting
blow to public confidence discourages citizens from participating in the electoral
process.

Voter deception involves, inter alia the distribution of misinformation

regarding the time, place, and manner of elections as well as voter eligibility.
25

longstanding target of threatening tactics. Id.

20. See, e.g., id. In 2006, roughly 14,000 Democratic voters with Spanish surnames in

Orange County, California received letters before the November 7 election falsely warning that

immigrants could face jail time or deportation for vote. Id.

21. See Lawyers Committee for Civil Rights Under Law, Incidents of Deceptive

Practices and Voter Intimidation in the 2006 Elections, available at http://lccr.3cdn.

net/d6af26cb31ff5eel66_vlm6x6x5.pdf.

22

.

See, e.g. , Matthew Fraser & Soumitra Dutta, Obama andFacebookEffect: His Masterful
Use of Web Tools Helped Him Win the Presidency, MEDIAWEEK, Nov. 24, 2008, at 10, available

at 2008 WLNR 2592289 1 ; Joe Garofoli, Obama Eyes New Rolefor Internet, S.F. Chron., Nov.
24, 2008, at Al; Laura Olsen, Obama Team Capitalizes on Link to Youth, Cffl. Trib., Nov. 26,

2008, at 7C.

23. See, e.g., Ben Conery, Electronic Scams Attempt to Keep New Voters at Home, WASH.

TIMES, Nov. 5, 2008, at B02 (discussing voter-suppression tactics where the perpetrators utilized

text messages and Facebook and detailing Facebook messages that said election schedules had

changed or that various parties were supposed to vote on different days). The article also discusses

problems at Drexel University where students were told via flyers that they "would be arrested at

the polls if they had unpaid parking tickets." Id. Overall, however, according to the article,

incidents of voter suppression were far less prominent and on a much lesser scale than in past

elections. Id.; see also Common Cause, The Lawyers Committee for Civil Rights Under Law and

the Century Foundation, Deceptive Practices 2.0: Legal and Policy Responses (on file with

author); Dan Morain, Some Obama Links Will Mislead, L.A. TIMES, Aug. 30, 2008, at A18; Joy-

Ann Reid, Bogus Emails Raise Anxiety Over Voter ID Law, S. FLA. TIMES, Oct. 3, 2008, at Al

.

24. The use of computers and other electronic mechanisms in the distribution of political

information has created yet another difficulty in thwarting these activities. Federal and state laws

are ill-equipped for Internet based deception. See infra Part I.A.2.

25 . The prevalence ofdeceptive practices and misinformation in the political arena has raised

the profile of several websites dedicated to providing accurate information. See, e.g.,

FactCheck.org, http://www.factcheck.org/ (last visited Oct. 7, 2009); PolitiFact.com, http://www.

politifact.com/truth-o-meter/ (last visited Oct. 7, 2009); Snopes.com; http://www.snopes.com/



20 1 0] VOTER DECEPTION 349

These deceptive practices regularly have as their main objective to misinform
unwanted minority, elderly, disabled, and language-minority voters

26
in an effort

to suppress votes.
27

Generally, the proliferation of misleading documents is

utilized to confuse and thwart eligible voters from participating in the electoral

process.

Many flyers are falsely disseminated in the name ofan official governmental
agency.

28
Additionally, the surge of computers, cell phones, and other

technology continues to hinder the identification of persons engaging in e-

deception.
29

Although these examples are a departure from heated campaign

battles, their reach is far and their impact discernible.

Efforts to deny voters the opportunity to participate in the electoral process

are not often investigated or litigated for myriad reasons, including the lack of

clear statutory authority and willingness to enforce.
30

Although the intent of

these practices is often clear and invidious, i.e., to suppress minority votes, it is

often difficult to know how many people are affected by voter intimidation or
deception.

3
' The anonymous nature ofdeceptive flyers and electronic documents

politics/politics.asp (last visited Oct. 7, 2009) (containing a section on its website specifically

addressing political myths).

26. See Daniels, supra note 14, at 58 (defining unwanted voters as "the disabled, elderly,

poor, or minority voter").

27. See, e.g. , Prevention ofDeceptive Practices and Voter Intimidation: Hearing Before the

S. Comm. on the Judiciary, supra note 3 (statement of John Trasvina, President and General

Counsel, Mexican Am. Legal Def. and Educ. Fund); Ian Urbina, Democrats Fear Disillusionment

in Black Voters, N.Y. TIMES, Oct. 27, 2006, at Al, available at http://www.nytimes.com/2006/

10/27/us/politics/27race.html?pagewanted=all.

28. Prior to the 2008 federal election in Virginia, an anonymous flyer with the state seal,

distributed in minority areas in Hampton Roads, Virginia, indicated that Republicans would vote

on Tuesday and Democrats on Wednesday. Julian Walker, State Police Investigate Source of

Phony Election Flier, VA.-PlLOT, Oct. 30, 2008, available at http://hamptonroads.com/2008/10/

state-police-investigate-source-phony-election-flier. Police investigated the source ofthe flyer and

instead of filing charges decided that it was a "joke that got out of control." Id.; Julian Walker,

Officials Find Source ofFake Election Flier, Won 't Press Charges, VA.-PlLOT, Nov. 3, 2008,

<jv'a//<36/ea/http://hamptomoads.cony2008/ll/officials-find-source-fake-election-flier-wont-press-

charges. Virginia is one of the few states that actually has a statute outlawing deceptive practices

in voting, classifying it as a Class 1 misdemeanor. See Va. Code Ann. § 24.2-1005.1 (2007).

29. Although convicted for an illegal voter suppression scam, Allen Raymond, author ofHow
to Rig an Election: Confessions ofa Republican Operative (2008), stated in a National Journal

article that "[a]n e-mail is far more traceable than an anonymous flier." See, e.g., David Herbert,

Voter Suppression Hits the Web, Nat'L J. ONLINE, Oct. 29, 2008, www.nationaljournal.

com/njonline/print_friendly.php?ID=no_20081027_9705.

30. See infra Part H.A.

31. People for the American Way Foundation, The Long Shadow of Jim Crow: Voter
Suppression in America 3-4 (2004), available at http://67.192.238.59/multimedia/pdf/Reports/

thelongshadowofjimcrow.pdf (noting that approximately four million Americans were denied the

right to vote in 2000 and included voter deception and intimidation as causes).



350 INDIANA LAW REVIEW [Vol. 43:343

makes it immensely difficult to determine the source ofpublication and tends to
thwart investigations and prosecutions.

32
These practices, however, have

significant consequences for individual voters attempting to exercise their

fundamental right to vote. Moreover, these practices threaten the integrity and

legitimacy of the democratic process.

Despite this resurgence of suppression, the federal government has

underutilized its ability to litigate these types of cases. In fact, the Justice

Department said that it lacked the authority to pursue these cases, despite their

potential impact on the fundamental right to vote.
33 The federal government has

statutes at its disposal to prevent voter intimidation and deceptive practices.
34

But statutes penalizing voter intimidation are rarely used
35
and have historically

been unsuccessful.
36

Legal scholars have addressed the effect of voter identification and voter

fraud on voter confidence and the integrity of the democratic system.
37 Law

32. See sources cited supra note 28.

33. Hearing Before the S. Judiciary Comm., supra note 10.

34. See infra Part II.A.

35. For example, the Department of Justice has brought only four cases in the history of

Section 1 1(b) in the VRA's forty-five-year history. See infra Part II.A.2.

36. See discussion infra Part II.A. 1 -2.

37. See, e.g., Stephen Ansolabehere & Nathaniel Persily, Vote Fraud in the Eye of the
Beholder: The Role ofPublic Opinion in the Challenge to Voter Identification Requirements, 1 2

1

Harv. L. Rev. 1737, 1750-51 (2008) (arguing the use ofphoto identification requirements bears

little correlation to the public's beliefs about the incidence offraud); Atiba R. Ellis, The Cost ofthe

Vote: Poll Taxes, Voter Identification Laws, and the Price ofDemocracy, 86 Denv. U. L. Rev.

1 023, 1 066 (2009) (arguing that "the history ofthe right to vote has been a steady struggle between

those who wish to constrain or restrict the vote by raising the cost and those who wish to make the

vote more accessible by lowering the costs" and these costs must be factored into voting rights

jurisprudence to ensure free and accessible elections); Chad Flanders, How to Think About Voter
Fraud (and Why), 41 CREIGHTON L. Rev. 93, 97 (2007) (proposing "that the right ofparticipation,

though perhaps only denied to a few when new voter requirements are put in place, is the most

relevant (and serious) harm to analyze in the voter fraud debate"); Richard L. Hasen, The Untimely

Death ofBush. v. Gore, 60 Stan. L. Rev. 1 (2007); Spencer Overton, Voter Identification, 105

Mich. L. Rev. 63 1 , 63 1 (2007) (arguing that "policymakers should instead examine empirical data

to weigh the costs and benefits of [I.D.] requirement[s]" because "[ejxisting data suggest that the

number oflegitimate voters who would fail to bring photo identification to the polls is several times

higher than the number of fraudulent voters, and that a photo-identification requirement would

produce political outcomes that are less reflective of the electorate as a whole"); Richard Tyler

Atkinson, Note, Underdeveloped and Overexposed: Rethinking Photo ID Voting Requirements,

Note, 33 J. Legis. 268, 269 (2007) (arguing "that photo ID requirements fail to fulfill their primary

purpose (the prevention offraud); in fact, photo ID requirements decrease legitimate voter turnout

(and therefore may increase the impact offraud"); Andrew N. DeLaney, Note, Appearance Matters:

Why the State Has an Interest in Preventing the Appearance of Voting Fraud, 83 N.Y.U. L. REV.

847 (2008) (arguing that the state has an interest not only in preventing voting fraud, but also in

preventing the appearance ofvoting fraud), and arguing the constitutionality ofphoto identification



20 1 0] VOTER DECEPTION 35

1

review articles have also discussed voter intimidation on the state and local

levels.
38 Most scholars and statutes conflate fraud with intimidation and

deceptive practices,
39

without illuminating the nuances that make deceptive
practices an identifiable and worthy cause of action. The lack of a well-defined
statute coupled with poor enforcement and deficient deterrents necessitate a

reasoned view ofways to uphold the democratic principles ofequal access to the

requirements in elections); Samuel P. Langholz, Note, Fashioning a Constitutional Voter-

Identification Requirement, 93 IOWA L. Rev. 73 1 , 73 1 (2008) (examining "the results ofthese legal

challenges and suggesting] the parameters in which a state legislature can fashion a constitutional

voter-identification requirement"); Aaron J. Lyttle, Note, Constitutional Law—Get the Balance
Right: The Supreme Court 's Lopsided Balancing Testfor Evaluating State Voter-Identification

Laws; Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008), 9 Wyo. L. Rev. 281,

283 (2009) (arguing that the Supreme "Court adopted a lopsided balancing test, placing greater

emphasis on states' interests in preventing fraud than on the risk of burdening voting rights" and

"the Court's failure to weigh voters' interests against those of the state leaves the prior confusion

untouched, thus endangering voting rights"); Milburg, supra note 1 1, at 466 (discussing "recent

developments and ongoing controversies concerning the REAL ID Act of2005" and "explores the
ramifications of a national identification card on the recent state trend of requiring identification

at the polls").

38. See, e.g., Anita S. Earls et al., Voting Rights in North Carolina: 1982-2006, 17 S. Cal.

Rev. L. & Soc. Just. 577, 588 (2008) (discussing voting rights violations in North Carolina from
1 982 to 2006 and summarizes the various barriers that minority voters in North Carolina voters still

face, including intimidation against minority voters and lack ofproper accommodations for disabled

voters); Patrick J. Troy, No Place to Call Home: A Current Perspective on Troubling

Disenfranchisement ofCollege Voters, 22 WASH. U. J.L. &POL'Y 591,616 (2006) (discussing voter
intimidation of college students and proposing solutions to that problem, such as locating polling

places on campus and creating a national standard for voter residency requirements); Katie Fowler,

Note, Deceptive VotingPractices and VoterIntimidation in the Wake o/United States v. Charleston

County, 2 Charleston L. Rev. 733, 749 (2008) (tracing the presence vote dilution among minority

voters in at large elections in South Carolina before United States v. Charleston County, 316 F.

Supp. 2d 268 (D.S.C. 2003), and the impact that decision had on such voting systems).

39. See, e.g., U.S. Election Assistance Comm'n, Election Crimes: An Initial Review
and Recommendations for Future Study 13-14 (2006), http://www.eac.gov/

clearinghouse/docs/reports-and-surveys-2006electioncrimes. pdf^attachmentdownload/file, which

defines election crimes, i.e., vote fraud, intimidation and deception as follows:

[IJntentional acts or willful failures to act, prohibited by state or federal law, that are

designed to cause ineligible persons to participate in the election process; eligible

persons to be excluded from the election process; ineligible votes to be cast in an

election; eligible votes not to be cast or counted; or other interference with or

invalidation of election results. Election crimes generally fall into one of four

categories: acts of deception, acts of coercion, acts of damage or destruction, and

failures or refusals to act.

Id. at 13 (emphasis added); see also Jocelyn Friedrichs Benson, Voter Fraudor Voter Defrauded?

Highlighting an Inconsistent Consideration ofElection Fraud, 44 Harv. C.R.-C.L. L. Rev. 1, 1

(2009) (defining election-related fraud into categories of "voter-initiated" and "voter-targeted").



352 INDIANA LAW REVIEW [Vol. 43:343

franchise.

The Equal Protection Clause of the Fourteenth Amendment40 provides the
means for governments to exercise their authority to address voter deception. In
Crawford v. Marion County Election Board,

41
the Supreme Court found that

Indiana had a compelling interest in preventing fraud, in part because doing so

preserved public confidence and legitimate votes from dilution.
42

Likewise, the

Supreme Court has found that states possess a compelling interest in preventing
voter intimidation.

43 A comparable state interest applies to voter deception.
When the state or federal government has a compelling interest in protecting an
individual's right but fails to protect that right, the Constitution should not leave

it unguarded.
44

Although various federal and state statutes remain at the

government's disposal to combat deceptive practices, the Equal Protection

Clause should intervene to prevent states from outlawing vote dilution ensuing

from fraud while under-enforcing vote dilution ensuing from voter deception. A
similar result should occur when analyzing voter deception.

This Article exposes the deficiencies in the current state ofthe law governing

voter intimidation and deceptive practices. It attempts to correct the legal

deficiencies within the confines of the constitutional framework. This Article

provides a legal framework for voter intimidation and deception as well as

solutions to addressing the quagmire of federal laws that unfortunately do not

sufficiently deter these activities. It also presents a careful analysis of the

conceptual and legal issues concerning deceptive practices. Part I provides

contemporaneous examples of voter deception and illustrates the need for

comprehensive and strategic legal definitions for deceptive practices. Part II

discusses the gaps in existing statutes, the lack of enforcement ofthose statutes,

and the government's current focus on voter fraud and using statutes against

communities that are traditionally victims of deception. Part III argues for a

Constitutional response under the Equal Protection Clause and recognizes First

Amendment and other Constitutional constraints. Part IV proposes a legislative
response that provides additional protections for individuals or groups victimized

40. U.S. Const, amend. XIV, § 1. The Equal Protection Clause of the Fourteenth

Amendment provides: "No state shall . . . deny to any person within its jurisdiction the equal

protection of the laws." Id.

41. 553 U.S. 181 (2008).

42. Id. at 1 84 (discussing the state' s ability to impose burdens on voters through stricter voter

identification standards and finding the state's justification for requiring voter ID, preventing voter

fraud, compelling).

43. See Burson v. Freeman, 504 U.S. 191, 210 (1992) (finding that the state could place

constraints on electioneering near polling places on Election Day).

44. See, e.g., Pamela S. Karlan, Framing the Voting Rights Claims ofCognitively Impaired

Individuals, 38 McGeorge L. Rev. 917, 930 (2007) (discussing the balance between the right to

vote of cognitively impaired individuals and the existing constitutional and legal framework that

governs each citizen's right to vote; arguing that the state must begin to balance disabled voters'

interest in participation within the electoral system and the broader public interest in maintaining

the integrity of the political system).



2010] VOTER DECEPTION 353

by voter deception and offers a private right ofaction and improved criminal and

civil penalties to strengthen existing laws.

I. Defining Deception

Elections in this new millennium have witnessed a revival of voter
intimidation and deceptive practices across the country.

45
In every federal

election since the year 2000, suppressors have falsely instructed citizens under

the guise of governmental authority and in some instances using threats and
penalties to disseminate false information in predominately minority areas.

46
In

2004, the "Milwaukee Black Voters League," an organization that does not exist,

distributed a flyer warning people found guilty ofany infraction, including traffic

tickets, to stay away from the polls or face possible imprisonment.47 The flyer
read:

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.48

During the 2008 federal election, many states endured instances of intimidation
and deception targeting the minority community.

49
These examples illustrate the

traditional deceptive practices of disseminating false information in minority

communities.
50

The 2008 presidential election cycle brought about a contested election in

45. See supra notes 1-6 and accompanying text.

46. See Nat'l Network for Election Reform, supra note 1 9, at 2.

47. Id.

48. Id.

49. Election Protection 2008, supra note 12, at 1. Since 2004, the Election Protection

campaign, which is comprised of approximately eighty organizations including the Lawyers

Committee for Civil Rights Under Law, People for the American Way Foundation Latino Justice,
and the NAACP have chronicled deceptive practices and voter intimidation taking place across the
country. Id; see also Nat'lNETWORK FOR ELECTION REFORM, supra note 19, at 3 (describing a
2003 election in Philadelphia, where voters in African American areas were systematically

challenged by men carrying clipboards, driving a fleet of some 300 sedans with magnetic signs

designed to look like law enforcement insignia); Tim Shipman & Tom Leonard, Turnout Hits
Record as Fraud Claims Dog Polling Day, DAILY TELEGRAPH (LONDON), Nov. 5, 2008, at 2
(providing a broad overview of reported Election Day problems in the United States relevant to

intimidation, suppression, and deception).

50. See Tova Andrea Wang, Election 2004: A Report Card, Am. PROSPECT, Jan. 1, 2005,

http://www.reformelections.org/commentary.asp?opedid=824 (describing deceptive acts in Ohio

in 2004, where newly registered voters were falsely warned that if the NAACP, the John Kerry
Presidential campaign, America Coming Together, or a local congressional campaign registered

them to vote, that they were not eligible to vote).



354 INDIANA LAW REVIEW [Vol. 43:343

which citizens were bombarded with robo calls
51
and misleading flyers.

52 The
nature of these calls was similar to traditional deceptive flyers in that they
contained false information and were generally targeted at both minority and

Democratic voters, but involved less cost and more impact. 53

Suppressors also used electronic deception to intimidate and deceive voters.

In Texas, an Internet message instructed voters to cast a straight Democratic

ticket and separately punch Barack Obama's name, which would negate their
vote.

54
Accordingly, e-deception provides yet another concern. Indeed, emails

touting the ineligibility of voters because of foreclosures were prevalent and

caused at least one Attorney General to try to provide accurate information.
55

Although the Maryland Attorney General and others utilized the media in an

attempt to correct the misinformation, in most instances, these types ofaccounts

remain unparsed and unprosecuted.

A. A Deceptive Definition

Deception is defined as "the practice of deliberately making somebody
believe things that are not true; an act, trick, or device intended to deceive or

mislead somebody."
56 When the act ofdeception partners with the act of voting,

5 1

.

See, e.g. , Jennifer Duck, Dems Claim GOP Launched 'Dirty ' Phone Campaign, ABC
NEWS, Nov. 6, 2006, ava//aZ)/e^http://abcnews.go.com/Politics/story?id=2633458&page=l ; Sam

Stein, Wave ofMcCain Robocalls Reported, Some May Violate State Law, HUFFINGTON POST, Oct.

1 6, 2008, http://www.huflmgtonpost.eom/2008/l 0/1 6/massive-rnc-robocall-may_n_l 35348.html.

Robo calls are a fairly new technological advance that allow an individual or group to make

multiple phone calls to promote a political message and can be used to disseminate misleading

information to masses in an effort to sway voters. See Charles Babington & Alec MacGillis, // 's
a Candidate Calling. Again: Republicans Deny Subterfuge as Phone Barrages Anger Voters,

Wash. Post, Nov. 7, 2006, at A8.

52. Susan Q. Stranahan, Broken Elections, Stolen Votes—Part V, CENTER FOR PUB.
Integrity, July 7, 2008, http://www.buyingofthepresident.org/index.php/stories/broken_

elections_stolen_votes_part_five/.

53. In Missouri in 2006, the Secretary of State reported that citizens had received robo calls

informing them that their polling places had changed when they had not and warning voters to bring

voter ID or they would not be permitted to vote. See Off. of the Secretary of State, Voters

First: An Examination of the 2006 Midterm Election in Missouri 17 (2007), http://www.
sos.mo.gov/elections/VotersFirst/2006/VoterFirst-Complete.pdf.

54. See Herbert, supra note 29 (arguing that voters are being suppressed through

communications on the Web this campaign season by capitalizing on new technologies and taking

advantage of an electorate that increasingly consumes political news online).

55. See Md. Off. of the Att'y Gen., Report on the Attorney General's Task Force

onVotingIrregularities (2008), http://www.oag.state.md.us/Reports/Voting%20Task%20Force

%20Repor4_28.pdf.

56. Encarta World English Dictionary (N. Am. Ed. 2009), available at http://encarta.

msn.com/encnet/features/dictionary/DictionaryResults.aspx?texttype=3&search=deception

(containing a basic definition for the act of deception).



2010] VOTER DECEPTION 355

the jurisprudence leaves open whether the practice of deliberately misleading a
voter serves as a legally actionable deed.

57
Consequently, voter deception is the

act of knowingly deceiving voters regarding the time, place, or manner of
conducting elections or the qualifications for or restrictions on voter eligibility.

In considering deceptive deeds, one must also consider their relation to fraud
and intimidation, particularly because those areas have far more protections than
deceptive practices and include some similarities. Voter deception is, in many
ways, similar to voter fraud and voter intimidation, yet some distinctions exist.
Scholars have sought to define vote fraud,

58
and statutes exist for determining

voter intimidation.
59 Few have attempted to conquer the amorphous and arguably

ambiguous definition of voter deception.
60

In an effort to encompass all illegal election activity, the Election Assistance
Commission (EAC)61 created a definition of"election crimes."62 The definition,
however, is overbroad and only tangentially includes deceptive acts.

63
In the

EAC's broad definition, only the terms "intentional acts . . . designed to cause .
. . eligible votes not to be cast or counted" tangentially address deceptive

practices.
64

Indeed, it speaks more to intimidation or fraud than deception. The

57. See infra Part II.A. 1 -2.

58. See, e.g., Ansolabehere & Persily, supra note 37, at 1758-59 (analyzing through
surveying the impact of voter fraud and its relation to participation in the political process and

finding that the use of photo identification requirements bears little correlation to the public's

opinion about the incidence of fraud); Flanders, supra note 37, at 95 (framing the debate as the

seriousness ofvoter fraud versus the deterrence ofvoters in passing laws to deter this activity such

as photo identification requirements at the polls).

59. See infra Part II.A. 1.

60. See e.g., Overton, supra note 37, at 636 (arguing the need for empirical data and less

anecdotes in imposing voter ID laws).

61

.

U.S. Election Assistance Comm'n R., supra note 39.
62

.

See Job Serebrov & Tova Wang, Voting Fraudand VoterIntimidation Report to the U. S.
Election Assistance Commission on Preliminary Research & Recommendations, 6 ELECTION L.J.
330, 332 (2007) (defining "election fraud" as "any intentional action, or intentional failure to act

when there is a duty to do so, that corrupts the election process in a manner that can impact on

election outcomes"); Tova Andrea Wang, A RiggedReport on U.S. Voting, Wash. Post, Aug. 30,
2007,atA21.

63. The EAC tasked Job Serebrow and Tova Wang to provide a report on the prevalence of
voter fraud and voter intimidation. See Serebrov & Wang, supra note 62, at 33 1 . The final report
was met with some criticism. See Wang, supra note 62. In the report, however, the EAC broadly
defines election crimes. See supra note 39 and accompanying text.

64. A 2007 EAC report defined election crimes, which would include voter fraud and voter
intimidation, but not voter deception as

any intentional action, or intentional failure to act when there is a duty to do so, that

corrupts the election process in a manner that can impact on election outcomes. This

includes interfering in the process by which persons register to vote; the way in which

ballots are obtained, marked, or tabulated, and the process by which election results are

canvassed and certified.



356 INDIANA LAW REVIEW [Vol. 43:343

EAC definition serves as a medley ofactions that allow voter deception to remain
ignored as a serious offense to the democratic process.

In 2007, then-newly elected Senator Barack Obama and senior statesman
Senator Charles Schumer unsuccessfully attempted to fill this void. In the 1 1 0th
Congress, Senators Obama and Schumer introduced the Deceptive Practices and
Voter Intimidation Prevention Act of2007, which would criminalize many ofthe
tactics of voter deception and increase the penalty from one to five years for

anyone convicted of voter intimidation.
65 The bill prohibits a person from

deceiving a voter regarding the time, place, or manner ofthe election.
66

Further,

it requires the Attorney General to provide "accurate" election information when
deception allegations are proven and to report to Congress on allegations of

deception after each federal election.
67

Because this bill speaks to voter

deception, it specifically reinforces the need for stricter penalties and greater

clarification. In some instances, however, it tends to fall short of its goal.
1. Deception as Fraud.—Generally, voter fraud involves "obtaining and

marking ballots, the counting and certification of election results, or the

registration ofvoters."
68

Traditional forms ofvoter fraud involve voting multiple

times under false names, vote buying, and election officials committing fraud

through counting spoiled ballots.
69

Intimidation and deceptive practices,

however, do not fall squarely within the definition of voter fraud. One scholar
suggests that courts should evaluate voter fraud in two separate categories:

"voter-initiated" and "voter-targeted."
70

Although voter-initiated acts refer

generally to voter fraud and voter-targeted to what is generally considered voter

suppression, the joining ofthese acts tends to negate the deceptive practices for

Serebrov & Wang, supra note 62, at 332. See U.S. ELECTION ASSISTANCE COMM'N R., supra note
39, at 14.

65. Deceptive Practices and Voter Intimidation Act of2007, S. 453, 1 1 0th Cong. § 3 (2007).

66. Id. The Act also designates the Civil Rights Division of the Justice Department as the

federal agency responsible for correcting misinformation that comes to its attention and to provide

Congress with a report ofany deceptive practices allegation within ninety days of any election for

federal office, including primaries, and run-offs. S. 453, § 4.

67. The Deceptive Practices and Voter Intimidation Prevention Act of 2007 has remained

dormant in the Senate. A House version of the bill, H.R. 1281, passed June 25, 2007 out of the
House. A 2005 version of the bill in the House would have provided a private right of action for
deceptive practices under 42 U.S.C. § 1971(c) (2006) and provides criminal penalties. Deceptive

Practices and Voter Intimidation Prevention Act of2005, H.R. 4463, 1 09th Cong. § 2(a)(2) (2005);

see infra Part IV.A.

68. Craig C. Donsanto & Nancy L. Simmons, Federal Prosecution of Election
Offenses 3 (U.S. Dep't of Just., Crim. Division, Pub. Integrity Sect., 7th ed. 2008), available at

www.justice.gov/criminal/pin/docs/electbook-rvs0807.pdf.

69. Lorraine C. Minnite, The Politics of Voter Fraud 6 (2007), available at

http://www.bradblog.com/Docs/politicsofvoterfraudfinal.pdf.

70. See Benson, supra note 39, at 1 (arguing that courts should consider the initiators ofthe

fraud who commits the acts and the effects on our democracy).



2010] VOTER DECEPTION 357

the more politically feasible voter fraud.
71 The level ofvoter fraud has long been

debated and serves as an impetus for recent legislation meant to deter alleged

fraudulent activity.
72

The Public Integrity Section of the Department of Justice (PIN), which is
primarily responsible for pursuing vote fraud cases, defines "election fraud" as

"involving] a substantive irregularity relating to the voting act—such as bribery,
intimidation, or forgery—which has the potential to taint the election itself."73
PIN acknowledges that some acts that may arguably constitute fraud may
nonetheless not be recognized as a federal election crime.

74
It specifically points

to instances of "distributing inaccurate campaign literature" as an example of

"reprehensible" actions that generally fall outside the scope offederal statutes.
75

Thus, the example of Prince George's County, discussed earlier, although

reprehensible and arguably involving deception, would not fall within a
prosecutable form of election fraud and, as such, would not be pursued or
prosecuted.

76

Both voter fraud and voter deception are types of electoral interference that

seek to affect electoral outcomes. Both fraud and deception involve untruths;

deception involves limiting the number of voters; and voter fraud attempts to
increase those numbers falsely. Scholars have debated the wisdom of election
laws passed to address voter fraud,

77
but the need for stronger and more potent

voter suppression and, in particular, voter deception laws is left wanting.

Consequently, voter fraud and voter deception enjoy different outcomes and

should require different legislative strategies, definitions, and penalties.
78

71. Id. State legislatures have focused much of their attention on combating voter fraud

through the implementation ofvarious voter identification laws. Minnite, supra note 69, at 61.

The voter identification debate has been characterized as a strictly partisan fight. Id. at 3. States

that passed voter identification laws were Republican-controlled. Id. at 6. Most Democratic-

controlled governments rejected voter identification legislation that made it more difficult for

citizens to cast a ballot. Id; see id. at 5 (finding that "[t]he claim that voter fraud threatens the

integrity ofAmerican elections is itself a fraud").

72. Lori Minnite & David Callahan, Securing the Vote: An Analysis of Election
Fraud 13-17 (2003 ) (discussing the lack ofrelationship between election fraud and requiring photo

identification); cf. John Fund, Stealing Elections: How Voter Fraud Threatens Our
Democracy (2004) (discussing recent examples of electoral tampering through voter fraud).

73. See DONSANTO & SIMMONS, supra note 68, at 24.
74. See id. at 47.

75. Id.

76. See discussion supra Part LA.

77. See, e.g., Overton, supra note 37, at 681 (concluding that voting identification

requirements may prevent fraud but also prevent legitimate voters from casting a ballot).

78. A. David Pardo, Election Law Violations, 45 Am. Crim. L. Rev. 305, 308, 329 (2008)
(discussing election fraud statutes, voter intimidation, and campaign finance and provides

alternative theories of prosecution, such as the Travel Act, 18 U.S.C. § 1952 (2006), used to

prosecute interstate travelers); see also Benson, supra note 39, at 1 (discussing how courts should

adjudicate "voter-initiated" and "voter-targeted" fraud differently).



358 INDIANA LAW REVIEW [Vol. 43:343

2. Deception as Intimidation.—Voter intimidation involves threats, force,
or interference in the balloting process in a manner that intimidates the voter
from participating in the election process.

79
Federal statutes define intimidation

as those actions that involve threats and interfere with a voter's right to exercise

the franchise.
80

Threats ofprosecution and deportation for committing the act of

voting illustrate the types of intimidating acts that currently encompass voter

intimidation.
81

The main distinction between voter intimidation and voter deception is that
intimidation of voters carries with it a connotation of some type of threat, e.g.,
incarceration or deportation.

82
Although the two areas overlap (and may, in fact,

be considered synonymous in many cases), deception is more focused on
misinformation or purposely disseminating misinformation,

83
while intimidation

is characterized by more threatening actions. This distinction, however, could
allow a broad definition of voter suppression because the nature of the actions

seeks to dissuade voters from participating in the electoral process. The efforts
to thwart voter participation through deception and intimidation are similar and

fit more securely in an analysis of overall attempts at suppression rather than
fraud. Although voter intimidation and deception are similar and statutes exist

specifically for intimidation and fraud, no federal legislation directly addresses

deception.

B. Voter Suppression

Voter intimidation and deceptive practices fall generally within voter

79. Wendy Weiser & Margaret Chen, Voter Suppression Incidents 2008, BRENNAN Center
for Just., Nov. 3, 2008, http://www.brennancenter.org/content/resource/voter_suppression_

incidents (last visited Oct. 8, 2009). The Brennan Center compiled a list ofVoter Intimidation and

Deceptive Practices that occurred across the country in the 2008 federal election, many included

actions from "officials" intimidating voters. Id. For example; in New Mexico a private investigator
responding to an allegation from Republican Party operatives questioned voter's eligibility to vote

in a June primary. Id. The Mexican American Legal Defense and Education Fund sued on behalf

of the investigated citizens who were deemed eligible voters. Id. Other federal and state statutes

that define voter intimidation are discussed infra Part II.B.

80. See 42 U.S.C. § 1971(b) (2006).

81. See Nat'l Network for Election Reform, supra note 1 9, at 2.

82. See Donsanto & Simmons, supra note 68, at 53.
83. Press Release, Sen. Barack Obama, Obama Bill Would Make Election Fraud, Voter

Intimidation Illegal (June 7, 2007), available at http://sweetness-light.com/archive/legislation-you-

get-from-an-acom-organizer. The unsuccessful Obama bill, co-sponsored by New York Sen.
Charles Schumer, linked deceptive practices and intimidation, defining "deceptive practices" as

"involving] the dissemination of false information intended to prevent voters from casting their

ballots, intimidate the electorate, and undermine the integrity ofthe electoral process." Deceptive

Practices and Voter Intimidation Prevention Act of2007, S. 453, 1 1 Oth Cong. § 2 (2007) (emphasis

added).



2010] VOTER DECEPTION 359

suppression,
84

which seeks to decrease the number of eligible voters and,
generally, take the electoral power away from individuals or groups; it also often
uses deception or threats to accomplish this goal. PIN admits that no federal
statute currently exists that criminalizes voter suppression.

85

The nature of voter suppression and the ability to document examples of
voter deception reinforce the need to prohibit the act of diluting the votes of

eligible voters under the Equal Protection Clause. Although voter intimidation

and deception are similar and statutes exist specifically for intimidation and

fraud, no federal legislation directly addresses deception.
86

Although

documented occasions of voter deception exist, few instances exist in the voter
fraud context. In fact, the Court noted in Crawford v. Marion County Election
BoardF that Indiana had no history of in-person voter fraud. 88 Yet, it passed
legislation arguing that it was compelled to provide protections for its citizens
against actions that it perceived as a threat to the democratic process.

89 The
same, however, is true in the voter deception area and examples ofdeception are

plentiful yet receive less attention.
90

II. Deceptive Laws

The Fifteenth Amendment91 of the U.S. Constitution prohibits the denial of
the right to vote on the basis of "race, color or previous condition of servitude."

Other amendments prohibit discrimination based on sex
92
and age.

93 A post-Civil

84. PIN defines voter suppression as follows:

Voter suppression schemes are designed to ensure the election of a favored candidate

by blocking or impeding voters believed to oppose that candidate from getting to the

polls to cast their ballots. Examples include providing false information to the

public—or a particular segment ofthe public—regarding the qualifications to vote, the
consequences ofvoting in connection with citizenship status, the dates or qualifications

for absentee voting, the date of an election, the hours for voting, or the correct voting

precinct. Another voter suppression scheme, attempted recently with partial success,

involved impeding access to voting byjamming the telephone lines of entities offering

rides to the polls in order to prevent voters from requesting needed transportation.

Donsanto & Simmons, supra note 68, at 61

.

85. Id.

86. See supra Part II.

87. 128 S. Ct. 1610(2008).

88. Id. at 1617-18.

89. Id. at 1619.

90. See infra Part II.B.

91. U.S. CONST, amend. XV, §§1, 2. The Fifteenth Amendment of the U.S. Constitution

states: "The right of citizens of the United States to vote shall not be denied or abridged by the

United States or by any State on account of race, color, or previous condition of servitude. The

Congress shall have power to enforce this article by appropriate legislation." Id.

92. U.S. Const, amend. XIX, § 1. The Nineteenth Amendment of the U.S. Constitution

states: "The right of citizens of the United States to vote shall not be denied or abridged by the



360 INDIANA LAW REVIEW [Vol. 43:343

War statute, 18 U.S.C. § 241, sought to address efforts to deprive Blacks oftheir
Constitutional rights, including the right to vote.

94
Despite this early effort to

address intrusions in the right to vote, and later iterations that followed,
95

the

need to combat efforts to thwart participation through voter intimidation and

deception remains.

It was not until 1939 that Congress specifically sought to penalize
intimidating acts that could deny eligible citizens the right to vote with the

passage of the Hatch Act. In addition to addressing the appropriate level of

political activity for federal employees, the law also made it illegal to intimidate
voters in federal elections.

96
Prior to the passage of the VRA, prosecutors

utilized 42 U.S.C. § 1971(b) to counter voter-intimidation.
97

In many instances,
prosecutors were thwarted by the statutes requirement proof of "purposeful

United States or by any State on account of sex." Id.

93. U.S. CONST, amend. XXVI. The Twenty-sixth Amendment of the U.S. Constitution

provides that persons who are eighteen or older are eligible to vote. Id.

94. See 18 U.S.C. § 241 (2006). This statute provides in part:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person .

. . in the free exercise or enjoyment of any right or privilege secured to him by the

Constitution or laws ofthe United States, or because ofhis having so exercised the same

. . . [t]hey shall be fined under this title or imprisoned not more than ten years, or both

This includes protections for the right to vote. See Wilkins v. United States, 376 F.2d 552, 554 (5th

Cir. 1967).

95. See infra Parts II.A-B,

96. See, e.g., S. REP. No. 1, 76th Cong., 1st Sess. 12, 25, 39 (1939); 84 CONG. Rec. 9604

(1939). The portion of the Hatch Act that addresses voter intimidation is codified at 18 U.S.C. §

594 (2006) and states in part:

[S]uch other person to vote or to vote as he may choose, or ofcausing such other person

to vote for, or not to vote for, any candidate for the office ofPresident, Vice President,

Presidential elector, Member ofthe Senate, Member ofthe House of Representatives .

. . at any election held solely or in part for the purpose ofelecting such candidate, shall

be fined under this title or imprisoned not more than one year, or both.

Id.

97. The case law indicates that several pre-VRA cases were successful. See, e.g., United
States v. Beaty, 288 F.2d 653, 655-56 (6th Cir. 1961) (finding relief against economic coercion,

involved eviction of black sharecroppers); United States v. Wood, 295 F.2d 772, 781 (5th Cir.

1961) (granting relief against state prosecution of a black engaged in voter-registration work);

United States v. Clark, 249 F. Supp. 720, 828 (S.D. Ala. 1965) (granting relief against baseless

arrests and unjustified prosecutions). Others may have been thwarted by the inability to prove

purposeful discrimination. See, e.g., United States v. Bd. of Educ. of Greene County, Miss., 332

F.2d 40, 46 (5th Cir. 1 964) (affirming a decision involving a school board's refusal to rehire a black

teacher who took part in voter registration activities); United States v. Edwards, 333 F.2d 575, 578-

79 (5th Cir. 1964) (affirming a trial court's decision involving a physical attack on blacks who

sought to register to vote).



20 1 0] VOTER DECEPTION 361

discrimination."
98

Congress's passage of the VRA," and in particular Section
1 1(b) of that legislation, made it clear that the government was not required to
prove that the acts were purposefully discriminatory. Since the passage of

Section 1 1(b), however, the federal government has rarely used this provision to

pursue voter intimidation and attempts to use it as a means to prevent and deter
voter intimidation have been largely unsuccessful.

A. Dormant Federal Statutes

In analyzing existing federal statutes and enforcement, neither clear

definition nor authority exists for prosecuting the act ofvoter deception. In some
instances, well-respected governmental authorities have said that the federal

government lacks the authority to pursue deceptive practices.
100

Ambiguities

remain in the federal law context regarding deceptive practices.
101 The justified

focus on the twentieth-century issue ofvoter intimidation to allow access, and the

twenty-first century focus on vote fraud in some instances to deny access,
necessitates congressional and state legislative attention.

Additionally, 42 U.S.C. § 1 97 1 (b) and Section 1 1(b) ofthe VRA, as well as the

98. During the House Hearings on passage ofthe VRA, then-Attorney General Katzenbach

said: "There has been case after case ofsimilar intimidation—beatings, arrests, lostjobs, lost credit,
and other forms of pressure against Negroes who attempt to take the revolutionary step of

registering to vote." Voting Rights: Hearings on H.R. 6400 Before the Subcomm. No. 5 ofthe H.

Comm. on the Judiciary, 89th Cong. 9 (1965) (statement of Att'y Gen. Nicholas Katzenbach).

Attorney General Katzenbach also said that

[p]erhaps the most serious inadequacy [of the existing statutes prohibiting voter

intimidation] results from the practice of district courts to require the Government to

carry a very onerous burden ofproof of "purpose." Since many types of intimidation,

particularly economic intimidation, involve subtle forms ofpressure, this treatment of

the purpose requirement has rendered the statute largely ineffective.

A/, at 11.

99. President Lyndon B. Johnson called the VRA of 1 965, "one ofthe most monumental laws
in the entire history of American freedom." David J. Garrow, Protest at Selma: Martin

Luther King, Jr., and the Voting Rights Act of 1 965, at 1 32 ( 1 978) (citing Public Papers of

the Presidents, Lyndon B. Johnson, 1 965, at 840-43); see also Voting Rights Act Amendments

of 1970, Pub. L. No. 91-285, 84 Stat. 314 (1970); Voting Rights Act Amendments of 1975, Pub.

L. No. 94-73, 89 Stat. 400 (1975); Voting Rights Act Amendments of 1982, Pub. L. No. 97-205,

96 Stat. 131(1 982); Voting Rights Act Reauthorization and Amendments Act of2006, Pub. L. No.

109-246 (2006); see generally'Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d

221 (D.D.C. 2008),prob.juris. noted, 129 S. Ct. 894 (mem.), rev 'dandremanded, 129 S. Ct. 2504

(2009).

1 00. See CraigDonsanto, FederalProsecutionofElectionOffenses 749, 795 (7th ed.,

1689 PLI/Corp. 2008) (stating although some acts are "reprehensible" they are beyond the reach

of federal statutes, such as "distributing inaccurate campaign literature").

101

.

For a discussion of election law statutes, see, for example, Pardo, supra note 78; David

C. Rothschild & Benjamin J. Wolinsky, Election Law Violations, 46 Am. Crim. L. Rev. 391 (2009).



362 INDIANA LAW REVIEW [Vol. 43:343

NVRA, statutes that the U.S. Department of Justice Civil Rights Division
enforces, do not contain criminal penalties.

102 A major shortcoming lies in the
lack of criminal penalties.

1. Federal Criminal Penalties and Enforcement.—The federal criminal
statute falls far short of enforcement and meaningful penalties for voter

intimidation and deception. PIN enforces criminal use of threats or violence to
coerce voters in voter registration, voting or uses voter registration applications

in a fraudulent manner.
103

However, PIN has not prosecuted persons for
misleading or false information under this statute.

104

PIN believes that a plausible vehicle for broad acts ofvoter suppression and
more specific acts of intimidation prosecutions is 18 U.S.C. § 241, which
considers it a felony to "conspire to injure, oppress, threaten, or intimidate any

person in any State, Territory, or District in the free exercise or enjoyment ofany

right or privilege secured to him the Constitution or laws ofthe United States." 105

In United States v. Tobin,
106

the federal government charged a Republican

Party official withjamming phone lines in an effort to affect the hotly contested
2002 U.S. Senate election in New Hampshire. 107 The court found that 18 U.S.C.
§ 241 was applicable and imprisoned the official for three months.

108
This

statute, however, has been rarely used in the voting context and only with varying

102. Section 1971(c) authorizes the Attorney General to bring civil actions for "preventive

relief against violations of § 1971(b). 42 U.S.C. § 1971(c) (2006). Section 11(b) ofthe VRA does
not include criminal penalties. Id. § 1973i(b).

103. See 18 U.S.C. § 241 (2006).

1 04. Most recently, PIN prosecuted a Republican operative in a voter suppression scam in New
Hampshire using 18 U.S.C. § 241. United States v. Tobin, No. 04-CR-216-01-SM, 2005 WL
3199672 at *1, *3 (D.N.H. Nov. 30, 2005) (holding that a conspiracy to interfere with a person's

right to vote violates 18 U.S.C. § 241).

1 05. 18 U.S.C. § 241 . The Supreme Court has found that voting is a fundamental right. See

Wesberry v. Sanders, 376 U.S. 1 (1964) (holding that apportionment of congressional districts so

that single congressman represented from two to three times as many Fifth District voters as were

represented by each of congressmen from other Georgia districts grossly discriminated against

voters in Fifth District in violation ofthe constitutional requirement that representatives be chosen

by people of the several states); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) ("[T]he right of

suffrage is a fundamental matter in a free and democratic society. . . . any alleged infringement of

the right of citizens to vote must be carefully and meticulously scrutinized.").

1 06. 2005 WL 3 1 99672, at * 1 , *3 (holding that a conspiracy to interfere with a person's right
to vote violates § 241).

1 07. Thomas B. Edsall, GOP Official Faces Sentence in Phone-Jamming, WASH. POST, May
17, 2006, at A10. One of the Republican Party's top priorities in 2002 was to retain the New
Hampshire Senate seat. Id. Tobin, the Republican National Committee regional political director,

was "[o]vercome by his desire for success in the election," he used his position to make the phone

jamming scheme successful instead of stopping it. Id.

108. AllenRaymond, Howto Rig an Election: Confessions ofaRepublican Operative
236 (2008). The defendant, Allen Raymond chronicled his actions in a book. Id. at 1.



20 1 0] VOTER DECEPTION 363

degrees of success.
109

Nonetheless, PIN believes that voter suppression
infractions should be prosecuted and that 18 U.S.C. § 241 is the proper

mechanism until Congress passes a statute that is more directly on point. 1 ,0 This
focus, however, continues to ignore the act of voter deception as a prosecutable

offense and threat to the democratic process.

Although a civil statute, the NVRA's provision, 42 U.S.C. § 1973gg-10(l),
prohibits the fraudulent and intimidating acts surrounding the voter registration

process and includes imprisonment and monetary fines as punishment.
111

But it

does not include penalties for deceptive practices, such as anonymous leaflets
that indicate the wrong date for the election.

2. Federal Civil Penalties andEnforcement.—In the civil law context, two
federal statutes currently govern voter intimidation: 42 U.S.C. § 1971(b)

112
and

1 09. See United States v. Classic, 313 U.S. 299, 309-10 (1941) (interpreting § 20 to apply to

the deprivation of the constitutional rights of qualified voters to choose representatives in

Congress).

1 10. See Donsanto & Simmons, supra note 68, at 63 (arguing that "suppression schemes
[represent] an important law enforcement priority, that such schemes should be aggressively

investigated, and that, until Congress enacts a statute specifically criminalizing this type ofconduct,

18 U.S.C. § 241 is the appropriate prosecutive tool by which to charge provable offenses.").

111. 42 U.S.C. § 1973gg- 10(1) provides:

A person, including an election official, who in any election for Federal office

—

( 1

)

knowingly and willfully intimidates, threatens, or coerces, or attempts to intimidate,

threaten, or coerce, any person for

—

(A) registering to vote, or voting, or attempting to register or vote;

(B) urging or aiding any person to register to vote, to vote, or to attempt to register or

vote; or

(C) exercising any right under this subchapter; or

(2) knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the

residents of a State of a fair and impartially conducted election process, by

—

(A) the procurement or submission ofvoter registration applications that are known by

the person to be materially false, fictitious, or fraudulent under the laws of the State in

which the election is held; or

(B) the procurement, casting, or tabulation ofballots that are known by the person to be

materially false, fictitious, or fraudulent under the laws ofthe State in which the election

is held, shall be fined in accordance with title 1 8 (which fines shall be paid into the

general fund of the Treasury, miscellaneous receipts (pursuant to section 3302 of title

31), notwithstanding any other law), or imprisoned not more than 5 years, or both.

42 U.S.C. § 1973gg- 10(a) (2006).

112. The bill that preceded these statutes and governed intimidation was the Hatch Act of

1939, which dealt with political activities offederal employees and also prohibited intimidation of

voters in federal elections. Donsanto & SIMMONS, supra note 68, at 57. The intimidation
provision was a response to irregularities in the 1938 election, including economic pressure on

participants in Works Progress Administration programs. Hatch Act of 1939: Information, at

http://www.answers.com/topic/hatch-act-of- 1939 (last visited Mar. 14,2010). 42 U.S.C. § 1971(b)

(2006) reads as follows:



364 INDIANA LAW REVIEW [Vol. 43:343

Section 1 1(b) of the VRA. 113 These statutes give the government the ability to
deter voter intimidation. The statutes' language gives prosecutors the potential
to litigate against persons who interfere with the right to vote. But they have
remained underutilized and leaves the purpose of the statutes unfulfilled and

open to political interpretation.

In its present form, the VRA prohibits voter intimidation, but it does not
include criminal penalties for such acts.

1 14
Moreover, other issues, such as giving

false information or voting more than once, are criminalized in § 1 973i(c)-(e) and
other violations under § 1973.

115
Although § 1971(b) prohibits interfering with

a constitutional right such as attempting to vote, it has been much more
successful at other times, particularly in the Civil Rights era.

116
Conversely,

Section 11(b) is rarely used and has remained highly unsuccessful.
117 The

Department of Justice has brought only four lawsuits under Section 1 1(b) in the

No person, whether acting under color of law or otherwise, shall intimidate, threaten,

coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of

interfering with the right of such other person to vote or to vote as he may choose, or

of causing such other person to vote for, or not to vote for, any candidate for the office

ofPresident, Vice President, presidential elector, Member ofthe Senate, or Member of

the House of Representatives, Delegates or Commissioners from the Territories or

possessions, at any general, special, or primary election held solely or in part for the

purpose of selecting or electing any such candidate.

42U.S.C. § 197 1(b) (2006). Section 197 1(c) authorizes the Attorney General to bring civil actions

for "preventive relief' against violations of § 1971(b).

113. Section 1 1(b) ofthe VRA reads as follows:
No person, whether acting under color of law or otherwise, shall intimidate, threaten,

or coerce, or attempt to intimidate, threaten, or coerce any other person for voting or

attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten,

or coerce any person for urging or aiding any person to vote or attempt to vote, or

intimidate ....

42U.S.C. § 1973i.

114. Id.

115. See id.

116. Early suits under § 1 97 1 (b) sought injunctive relief against persons who used economic

and physical threats against eligible voters. For example, in United States v. Original Knights of

the Ku Klux Klan, 250 F. Supp. 330, 349-50 (E.D. La. 1965), the three-judge district court panel

held that the defendants violated § 1971(b). The defendants admitted that they had engaged in

economic coercion and other efforts to prevent blacks in Washington Parish from registering to

vote. Id. at 337. The court rejected the defendants' contentions that § 1971(b) does not apply to

private individuals and that the statute is unconstitutional. Id. at 349, 355. See also United States

v. Chappell (sought and obtained injunctive relief against segregated voter lists); Bell v. Home

(M.D. Ga. 1965) (sought and obtained injunctive relief against acts of intimidation, including the

arrest of blacks who had refused to leave a "white" polling place).

1 1 7. See Paul Winke, Why the Preclearance andBailout Provisions ofthe Voting Rights Act

Are Still a Constitutionally ProportionalRemedy, 28 N.Y.U. REV. L. & Soc. CHANGE 69, 1 17 n.290
(2003) (noting that section 1 1(b) prohibits intimidation by individuals but not by jurisdictions).



2010] VOTER DECEPTION 365

history of the VRA. 118 All were brought for various violations that are
contemporaneously classified as voter suppression; most are pure voter

intimidation cases and only one could arguably classify as a voter deception
119

case.

The more contemporary Section 1 1(b) cases are informative in ascertaining
the Department's philosophy towards prosecuting under the statute, which the

courts have interpreted as a voter intimidation statute because of its prohibition

against threats.
120 The most recent cases involve the Department ofJustice filing

complaints against racial minorities.
121 The choice of enforcement is revealing

about the impact on future enforcement of voter intimidation and deceptive

practices. For example, in United States v. Brown, the U.S. Department of

Justice, Civil Rights Division, Voting Section brought the first case pursuant to

Section 2 of the VRA122 on behalf of white voters in Noxubee, Mississippi. 123

118. The first, United States v. Harvey, 250 F. Supp. 219, 222 (E.D. La. 1966), was filed in

1965 and was unsuccessful. Id. at 237. The Department alleged that, in violation of Section 1 1(b)

and Section 1 97 1 (b), the defendants terminated sharecropping and tenant-farming relationships

with blacks who had registered to vote, evicted such persons from rental homes, and discharged

them from salaried jobs. Id. at 222. Concluding that the intimidation statutes exceeded Congress'

power and that, in any event, the Department had failed to prove intimidation, the court granted

judgment for the defendants. Id. at 226, 237.

1 1 9. Id. at 22 1 (voter intimidation); United States v. N.C. Republican Party (voter deception);

United States v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007) (voter intimidation), aff'd, 56 1 F.3d

420 (5th Cir. 2009); Complaint, United States v. New Black Panther Party for Self-Defense, No.
09-0065 (E.D. Pa. Jan. 7, 2009), available at http://moritzlaw.osu.edu/electionlaw/litigation/

documents/BlackPanther-Complaint- 1 -7-09.pdf (voter intimidation).

120. See, e.g.. Brown, 494 F. Supp 440 (voter intimidation).

121. Id. (DOJ brought a Section 2 and Section 1 1(b) challenge against racial minorities for

alleged voter intimidation); Complaint, United States v. New Black Panther Party for Self-Defense,
No. 09-0065 (E.D. Pa. Jan. 7, 2009) (DOJ filed a voter intimidation challenge against members of

the New Black Panther Party).
122. The VRA contains two primary enforcement provisions. Section 2 prohibits

discrimination in voting based on race, color, language, or minority status. Section 5 requires

specified jurisdictions to submit all oftheir voting administration changes to the Attorney General

or U.S. District Court for the District of Columbia prior to implementation. Congress included a

national prohibition against discrimination in voting in Section 2 ofthe Act. The provision imposes

a prohibition against racial discrimination in any voting standard, practice or procedure, including

redistricting plans. Under Section 2, "[p]laintiffs must demonstrate that ... the devices result in

unequal access to the electoral process." Thornburg v. Gingles, 478 U.S. 30, 46 (1986).

1 23. Brown, 494 F. Supp. 2d 422. The District Court judge noted that this was certainly "an

unconventional, ifnot unprecedented use ofthe Voting Rights Act." Id. at 443. The court opined:

[Defendants proclaim it "preposterous" that the Justice Department—a Justice
Department they maintain has for decades been wholly unresponsive to complaints of

voting discrimination by black citizens—would have the temerity to come into this court
claiming that blacks in Noxubee County, who were oppressed by the white

establishment for 135 years and who finally gained the reins ofpower a mere 12 years



366 INDIANA LAW REVIEW [Vol. 43:343

Under a cloud of criticism, the Department brought a voter intimidation
lawsuit against African American defendants.

124
This was an interesting choice,

because in most acts ofvoter intimidation and deception, African Americans and

members ofother minority communities are the victims, not the perpetrators. 125

In Brown,
126

the court found that the defendants had violated Section 2 of the

VRA. 127 Regarding the Section 1 1 (b) claim, the district court found that Brown's
actions during a 2003 Democratic primary had "a racial element," but did not

constitute a threat that affected the right to vote.
128

George W. Bush's administration brought a second case against African
Americans shortly after the 2008 elections, using its Section 1 1(b) authority that

involved poll watchers in Philadelphia, Pennsylvania.
129

In UnitedStates v. New
Black Panther Party, MS,

130
the Department alleged that members of the New

Black Panther Party brandished weapons and made racial slurs at both black and
white voters outside a polling place.

131 Among criticism, 132 the newly elected

ago, have discriminated against whites in that county.

Id. at 480. The defendants further argued that white citizens in Noxubee County could not

demonstrate the critical requirements under the VRA, including a history ofofficial discrimination,

under-representation in elections, discrimination in "education, employment or health," and an

unresponsive government. Id. at 483. The defendants further argued that Section 2 was "being

launched as a missile without an enemy." Id. at 480.

124. See Adam Nossiter, U.S. Says Blacks in Mississippi Suppress White Vote, N.Y. TIMES,

Oct. 1 1, 2006, at AIS, available at http://www.nytimes.eom/2006/10/l 1 /us/politics/ 1 lvoting.html;

Peter Whoriskey, Alleged Voting Rights Violation with Twist Goes to Trial, WASH. POST, Jan. 16,

2007, at 2, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/01/15/

AR2007011501196.html.

125. Logan, supra note 1 5 . The overwhelming accounts ofvoter intimidation and particularly

voter deception target minority communities. See supra notes 15-19.

126. 561 F.3d420.

127. Mat 434-35.
128. United States v. Brown, 494 F. Supp. 2d 440, 477 n.56 (S.D. Miss. 2007), aff'd, 56 1 F.3d

4420 (5th Cir. 2009).

129. Press Release, Dep't of Just., Justice Department Seeks Injunction Against New Black
Panther Party (Jan. 7, 2009), available at http://www.justice.gov/opa/pr/2009/January/09-crt-

014.html.

1 30. United States v. New Black Panther Party for Self-Defense, No. 09-0065 (E.D. Pa. Jan.

7, 2009), available at http://moritzlaw.osu.edu/electionlaw/litigation/documents/BlkPants-Judgmt-

5-18-09.pdf. In its complaint the Department alleged that the defendants violated Section 1 1(b)

through "armed and uniformed personnel at the entrance to the polling location," "[t]he loud and

open use ofracial slurs," and essentially creating an "intimidating and threatening presence" outside

the polls. Complaint at 4-5, United States v. New Black Panther Party for Self-Defense, No. 09-

0065 (E.D. Pa. Jan. 7, 2009), available at http://moritzlaw.osu.edu/electionlaw/litigation/

documents/BlackPanther-Complaint- 1 -7-09.pdf.

131. The members of the New Black Panther Party outside the polling place described
themselves as "security" and "concerned citizens." Youtube.com, "Security" Patrols Stationed at

Polling Places in Philly, http://www.youtube.com/watch?v=neGbKHyGuHU&feature=player_



20 1 0] VOTER DECEPTION 367

administration decided not to pursue the case and dropped the charges against the

defendants.
133

It is not clear that the New Black Panther Party members actually
intimidated voters, particularly as the police allowed one member of the New
Black Panther Party to remain at the polls.

134
Nonetheless, the presence of a

weapon outside of a polling site could threaten or intimidate a voter from
entering. The government's dismissal of this case either demonstrated its
inability to prove the necessary elements ofthe statute (i.e., threats, intimidation,

coercion) or a political decision not to prosecute. Regardless, the government's

decision to pursue and abandon this case demonstrates the powerlessness of the

statute in its present form.

The federal government has brought only one case under the civil
enforcement statute that arguably involved intimidation and deception. The hotly
contested 1 990 U.S. Senate race involving incumbent Jesse Helms and challenger
Harvey Gantt

135 was especially contentious and at times extremely race-based. 136

It is commonly held that Helms regained the lead in a faltering campaign when
he aired an advertisement that played to the fears and prejudices of North

Carolina citizens.
137

embedded. The police removed one member of the party who held a nightstick, but allowed a

second member to remain. Stu Bykofsky, Sometimes, Intimidation Is in Eye ofBeholder, PHIL.

Daily News, June 8, 2009, Local, at 6.

132. Jerry Seper, Career Lawyers Overruled on Voting Case, WASH. TIMES, May 29, 2009,
at A 1 , available at http://www.washingtontimes.com/news/2009/may/29/career-lawyers-overruled-
on-voting-case/ (noting that career lawyers, who sought to pursue sanctions against the members

ofthe New Black Panther Party, were overruled by political appointees). See Editorial, Protecting
Black Panthers; The Obama Administration Ignores Voter Intimidation, WASH. TIMES, May 29,
2009, at A20 (arguing that the members' conduct was in clear violation ofthe VRA because the Act
prohibits "any 'attempt to intimidate, threaten or coerce,' any voter or those aiding voters" and

criticizing the Department of Justice for dropping such a "blatant intimidation" case).

133. Seper, supra note 132.

1 34. See Bykofsky, supra note 131.

135. Harvey Gantt was a civil rights pioneer. He was the first African American admitted to

Clemson University in 1 963, and he graduated with honors from Clemson and received a master's

degree in city planning from the Massachusetts Institute of Technology. Harvey Gantt,

Newsobserver.com, http://projects.newsobserver.com/under_the_dome/profiles/harvey_gantt.

He served as mayor of Charlotte, North Carolina from 1983 to 1987 and on the city council from

1 974 to 1 983. Id. He ran unsuccessfully for U.S. Senate against Jesse Helms in 1 990 and in 1 996.

Id.

136. Id.

137. In the "White Hands" advertisement, the commercial begins with a white male—showing
only his hands—opening a letter and then throwing it away. The announcer then says,

You needed that job, and you were the best qualified. But they had to give it to a

minority because of a racial quota. Is that really fair? Harvey Gantt says it is. Gantt

supports Ted Kennedy's racial quota law that makes the color of your skin more

important than your qualifications. You'll vote on this issue next Tuesday. For racial

quotas, Harvey Gantt. Against racial quotas, Jesse Helms.



368 INDIANA LAW REVIEW [Vol. 43:343

In a continuation ofthese tactics and an example of classic voter deception,

predominately African American communities received 125,000 postcards
containing misleading information on voter eligibility and threatening them with
vote fraud prosecutions.

138
After the election, a Department of Justice lawsuit

resulted in a consent decree prohibiting the state's Republican Party "from

targeting voters based on their 'racial minority status,' and required it to obtain

prior court approval for its anti-fraud activities."
139 The Department settled the

case based on its authority to protect against race discrimination under Section

2 of the VRA, but arguably not under its authority contained within the civil
penalties.

140

The federal government's lack of enforcement of voter intimidation and its
most recent application to traditional beneficiaries of the VRA are quite
instructive. Department of Justice officials questioned whether Section 11(b)

could apply to deceptive practices, such as the Senator Cardin example,
141

but the

officials used the statute against black citizens, in the face of overwhelming

evidence that vote intimidation is typically committed against minorities, not by

them. Granted, the federal Section 11(b) cases did not involve anonymous
actions or publications; however, the need to enjoin practices promulgated

against minority communities that intimidate and deceive voters is evident. The

choice and lack of enforcement of Section 1 1(b) and other statutes to address

YouTube.com, Jesse Helms's "Hands" ad, http://www.youtube.coin/watch?v=KIyewCdXMzk.

After airing the "White Hands" political advertisement, Senator Helms moved up considerably in

the polls and ultimately won the election. See ABC News Services, Sen, Jesse Helms Deadat 86:
Polarizing North Carolina Lawmaker Known as 'Senator No ', July 4, 2008, http://abcnews.go.

com/US/story?id=5309543&page=l

.

138. Press Release, N.C. Democratic Party, North Carolina Democrats Announce

Unprecedented Election Protection Program (Aug. 3, 2007), available at http://www.ncdp.org/

north_carolina_democrats_election_protection; see U.S. Election Assistance Comm'n, supra

note 39, at 13-14 (defining election crimes to include dissemination of false information regarding

eligibility to vote).

1 39. Justin Levitt &Andrew Allison, Reported Instances of Voter Caging 3 (2007),
available at http://www.brennancenter.Org/pager-i/d/download_file_49609.pdf. Such direct mail

marketing campaigns are also known as "vote caging" schemes, utilized to indicate potential vote

challenges. Vote caging is

a three-stage process designed to identify persons in another party or faction whose

names are on a voter registration list, but whose legal qualification to vote is dubious,

and then to challenge their qualification either before or on Election Day. Ostensibly,

caging is an attempt to prevent voter fraud. In practice, it may have the effect of

disenfranchising voters who are legitimately registered.

Chandler Davidson et al., Vote Caging as a Republican Ballot Security Technique, 34 Wm.

Mitchell L. Rev. 533, 537-38 (2008) (discussing voter deception through vote caging methods).

140. Although this case could serve as a classic voter intimidation or deception case, the case

was brought and settled under a purposeful discrimination theory under Section 2 of the VRA.

141. See Introduction, supra. Samples ofsuch flyers are available at NationalCampaign

for Fair Elections, supra note 1

.



20 1 0] VOTER DECEPTION 369

other voter suppression tactics evidence the need for more protections. With
only a few Section 1 1(b) cases in the history ofthe statute and a lack ofa federal
statute that unequivocally addresses deceptive practices, the impotence of the

civil statutes and the indecision of the criminal statutes in their current

configuration are clearly revealed. In fact, the government has yet to bring a

successful intimidation case under the civil statute.
142

B. State Voter Intimidation and Deceptive Practices Statutes

States have instituted an array of statutes seeking to address voter

intimidation, fraud, and deception. Thirty-nine states have statutes that

specifically bar some form of voter intimidation, deceptive practices, or both.
Most laws can be divided into three categories, based on the type of false
information that is outlawed. The first category of statutes outlaw the
dissemination of false information regarding election administration, such as

registration and polling site activity.
143 The second category outlaws false

information on candidates or issues, such as making a false statement about a
candidate or a proposition,

144
while the third category of statutes address both

election administration and candidate or other substantive issues.
145 Ofthe thirty-

nine states that have laws addressing some form of voter intimidation and
deceptive practices, only nine states consider a violation of their voter

intimidation statutes as a felony;
146
and only fifteen find the offender guilty of a

142. See United States v. Brown, 494 F. Supp. 2d 440, 477 n.56 (S.D. Miss. 2007), aff'd, 561

F.3d 420 (5th Cir. 2009) (noting the government's lack of pursuit and triumph and that "the

Government has given little attention to this claim, and stat[ing] that it has found no case in which

plaintiffs have prevailed under this section").

143. See, e.g., Va. Code Ann. § 24.2-1005. 1 (West 2007) (considering it a misdemeanor to

knowingly communicate false election information to a registered voter about the time, date or place

of voting and also prohibiting false information regarding a voter's polling site or registration

status).

144. See, e.g., Wis. Stat. Ann. § 12.05 (West 2004) (prohibiting "false representation^]

pertaining to a candidate or referendum which [are] intended ... to affect voting at an election").

145. For example, Louisiana precludes the dissemination of any "oral, visual, or written

material containing ... a false statement about a candidate ... or about a proposition." La. Rev.

Stat. Ann. § 18:1463 (2004) as well as information regarding voting or registration. Id. §§
18:1 46 1, 18:1 46 1.1. The parsing of various types of false information to election administration,

candidates, and the like helps to ensure that these laws are not overbroad and consistent with the

state's compelling interest. See supra Part II.B (discussing constitutional considerations).

146. Perhaps the most stringent state is South Carolina, which imposes a ten-year sentence of

imprisonment and possibly a fine for a violation of its voter intimidation statute. The South

Carolina statute reads:

A person who, at any of the elections, general, special, or primary, in any city, town,
ward, or polling precinct, threatens, mistreats, or abuses a voter with a view to control

or intimidate him in the free exercise of his right of suffrage, is guilty of a felony and,

upon conviction, must be fined in the discretion of the court or imprisoned not more



370 INDIANA LAW REVIEW [Vol. 43:343

misdemeanor.
147 Ofthose states that include penalties for intimidation, only five

states include "fraud" in their statutes penalizing intimidation.
148

Only four states

also penalize voter deception.
149

On the issue of e-deception, a few states include laws that are broadly
construed such that they may apply to the traditional means of deception and
online voting deception.

150 The litany ofstatutes and their attributes leads at best
to piecemeal enforcement.

151
In most cases, the intimidation or fraud cases are

than ten years, or both.

S.C. Code Ann. § 7-25-80 (1976).

147. The majority of states that impose penalties for voter intimidation only find offenders

guilty of misdemeanors; most impose a class A misdemeanor. See, e.g., Ala. Code § 17-17-33
(1975) (class A misdemeanor for intimidation, threats, etc.); Ark. Code Ann. § 7-1-103 (West
2010) (class A misdemeanor for intimidation, threats, etc.); Tenn. Code Ann. § 2-19-1 15 (West
2009) (class A misdemeanor for "force or threats"); Va. Code Ann. § 24.2-607 (2006) (class 1
misdemeanor for any person who "hinder[s], intimidate[s] orinterfere[s] with any qualified voter").

Delaware allows a civil action against the offender and allow the petitioner to recover $500. Del.

Code Ann. tit. 15, § 5162 (West 2006).

148. See Cal. Elec. Code § 1 8573 (West 2003) (stating that a person is "guilty of a felony"

if he or she "defrauds any voter at any election by deceiving and causing him or her to vote for a

different person for any office than he or she intended or desired to vote for"); Idaho Code Ann.

§ 18-2305 (West 1972) (determining that "[a] person who . . . defrauds any elector ... is guilty of

a misdemeanor"); Md. Code Ann. Elec. Law.§ 16-201 (2009) (maintaining that "[a] person may

not willfully and knowingly [i]nfluence or attempt to influence a voter's decision through . . .

fraud"); S.C. Code § 7-25- 1 90 (2009) (pronouncing that "[a] person . . . who by force, intimidation,

deception, [or] fraud . . . controls the vote of any voter ... is guilty of a felony"); W. VA. CODE

Ann. § 3-9-10 (West 2002) (declaring that "[a]ny person who shall, by . . . fraud . . . prevent or

attempt to prevent any . . . voter . . . from freely exercising his right of suffrage at any election" is

guilty of a misdemeanor).

149. Florida, Illinois, Kansas, and Minnesota penalize voter deception. See Fla. Stat. Ann.

§ 104.0615 (West 2008) (including in the purview of the statute false information to induce or

compel an individual to vote or refrain from voting); 10 III. Comp. Stat. Ann. 5/29-4 (West 2003)

(penalizing "[a]ny person who, by . . . deception . . . knowingly prevents" another from voting or

registering to vote); KAN. Stat. Ann. § 25-2415 (1974) (including the mailing or publishing of

false infonnation as proscribed voter intimidation); Minn. Stat. Ann. § 204C.035 (2006)

(prohibiting a person from "knowingly deceiv[ing] another person" about election information).

150. See, e.g., Ala. Code § 17- 17-38 (1975) (prohibiting "[a]ny person. . .by any. . .corrupt

means, [from] attempting] to influence any elector in giving his or her vote, deter[ring] the elector

from giving the same, or disturbing] or hindering] the elector in the free exercise of the right of

suffrage"). For a comprehensive analysis of current laws and their applicability to online voter

deception, see Common Cause, supra note 23.
151. See, e.g., Kamins v. Bd. of Elections for D.C., 324 A.2d 187 (D.C. 1987) (finding that

certain write-in voters should have been counted and remanded for other proceedings); Pabey v.

Pastrick, 816 N.E.2d 1138, 1151 (Ind. 2004) (granting relief to plaintiff for proving "that a

deliberate series ofactions occurred"); Rogers v. Holder, 636 So. 2d 645 (Miss. 1994) (upholding

election results despite known departures from absentee voting provisions).



20 1 0] VOTER DECEPTION 371

brought, while the deceptive practices are allowed to continue without penalty

or investigation.

Although most state voter intimidation statutes contain language similar to

the federal statutes prohibiting intimidation, e.g., "[i]t shall be unlawful ... to

intimidate, threaten, or coerce,"
152

the best-structured statutes that would
encompass deception do not limit the illegal actions to those containing threats.

Those statutes highlight the intentional falsehood to manipulate voters regarding

an election administration matter, such as the date ofthe election. Nonetheless,

state statutes that specifically address deceptive practices can serve as a model
for other legislation. A Kansas statute that became effective in 2001, serves as
a model for states seeking to encompass the distinct instances of voter

suppression, including deception. Statutes that include criminal or harsh civil

penalties can have a deterrent effect and lessen the impact of these practices.

Whether on the state or federal level, the need for a more precise
criminalization of deceptive practices is warranted. Most statutes addressing
some form of"election crimes" ignore the impact and harm that voter deception
causes. Although some statutes exist for either voter fraud or intimidation, few
comprehensive laws address documented and resurgent deceptive practices.

Thus, acts ofvoter dilution can best be addressed through vigorous enforcement

and more inclusive interpretation of existing statutes.

III. Ending Deception

The history of election regulation in America "reveals a persistent battle
against two evils: voter intimidation and election fraud."

153
Voter intimidation

and deceptive practices have in large part not been regulated or litigated in the

United States.
154 Any revisions or new regulations must adequately include

constitutional considerations that secure and protect the right to vote. Although

the Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution provides the authority to combat voter deception, Congress should

also strengthen existing statutes to address deceptive practices.

A. Equal Protection Clause

Governments have a significant interest in protecting their citizens from

deceptive practices. The U.S. Supreme Court has found compelling interests in

1 52. See, e.g. , Ala. Code § 1 7- 1 7-33 ( 1 975) (effective January 1 , 2007) (barring intimidation

and threats for the election of"any candidate for state or local office or any other proposition at any

election"). The statute also qualifies intimidation as a class A misdemeanor. Id.
153. Burson v. Freeman, 504 U.S. 191, 206-10 (1992) (holding that a Tennessee statute

prohibiting the solicitation ofvotes and the display or distribution ofcampaign materials within 1 00

feet of the entrance to any polling place was narrowly tailored to serve a compelling state interest

in preventing voter intimidation and election fraud, as required by the First Amendment).

1 54. See supra Part II.A.



372 INDIANA LAW REVIEW [Vol. 43:343

laws that sought to prevent voter intimidation
155

and voter fraud.
156 The right to

vote and participate in the political process free from intimidation and fraud is

strikingly similar to issues surrounding deceptive practices. Voting is different

from other rights in a democratic society, in that the right to vote and to do so

without interference is a linchpin of our democracy.
157

Accordingly, efforts to

distort, mislead, connive, and deceive are worthy of federal constitutional

protections. The Equal Protection Clause ofthe Fourteenth Amendment, as well
as various existing federal and state statutes, assist the government in its pursuit

of free access to the franchise.

In Crawford v. Marion County,
158

the U.S. Supreme Court found that Indiana
had two legitimate reasons for adopting a voter identification law that limited the

number of acceptable forms of identification to government-issued photo
identifications.

159 The Court found that Indiana's desire to deter and detect voter
fraud and its interest in promoting voter confidence were sufficient to find the

voter identification statute constitutional.
160

These ideals are paramount in the

need to provide governmental protection against deceptive practices.

Governmental entities possess a need to deter and detect voter deception and the

lack of enforcement of deceptive practices adversely affects voter confidence,

particularly in incidents such as the Franklin County, Ohio, flyer that appeared

to have the stamp ofa legitimate governmental office.
161

These kinds ofacts tend

to cause voters to question the integrity of the electoral process. Regarding

public confidence, the Crawford Court found that public confidence

"encourage[d] citizen participation in the democratic process."
162

B. First Amendment Concerns

Although an Equal Protection argument exists for persistent vigilance

155. SeeBurson, 504 U.S. at 206.

156. See Crawford v.Marion County Election Bd., 128S.Ct. 1610, 1623 (2008) (holding that

purported state interests for an Indiana statute requiring government-issued photo identification to

vote were sufficient to justify the limitation imposed on voters).

157. SeeYickWov. Hopkins, 118U.S. 356, 370 (1886) (declaring that "the political franchise

ofvoting is . . . regarded as a fundamental political right, because [it is] preservative of all rights").

158. 128 S. Ct. 1610(2008).

159. Id. at 1616-17.

160. Crawford, 128 S. Ct. at 1617, 1624. Each of Indiana's asserted interests is

unquestionably relevant to its interest in protecting the integrity and reliability of the electoral

process. See id. at 1617 (noting that the opponents of the law did not "question the legitimacy of

the interests the State has identified").

161. See supra Part I.A.

1 62. Crawford, 1 28 S. Ct. at 1 620 (holding that state's interests identified asjustifications for

Indiana statute requiring government-issued photo identification to vote were sufficient to justify

any limitation imposed on voters). Indiana's interest in protecting public confidence in elections,

although closely related to its interest in preventing voter fraud, has independent significance

because such confidence encourages citizen participation in the democratic process.



2010] VOTER DECEPTION 373

regarding voter deception, other constitutional constraints must also be

considered. The Supreme Court has held that "[t]he freedom of speech and of
the press, which are secured by the First Amendment against abridgment by the
United States, are among the fundamental personal rights and liberties which are
secured to all persons by the Fourteenth Amendment against abridgment by a
state."

163

In considering voter intimidation and deceptive practices, the fundamental

right to vote and political speech are firmly juxtaposed. This juxtaposition

requires balancing the right to vote with free speech and must be considered

when addressing the dearth of all-inclusive voter suppression legislation. In
constructing and strengthening state and federal legislation, one must not only

consider the rights and freedoms of the affected citizenry, but also the rights of

the deceiver.

1. First Amendment and Political Speech.—The First Amendment of the
U.S. Constitution protects the right to speak freely.

164
This right to speak freely,

however, should not include the right to speak falsely with intent to impair

another's rights. A major purpose ofthe First Amendment is to protect "the free
discussion ofgovernmental affairs."

165 The Supreme Court has also noted, "For
speech concerning public affairs is more than self-expression; it is the essence
ofself-government."

166 Freedom ofexpression is at the root ofour participatory
democracy.

167
The First Amendment serves the greater purpose ofpromoting a

democratic government and serves the people's interest in having the information

they need to enable self-government.
168

Historically, the First Amendment has

163. Thornhili v. Alabama, 310 U.S. 88, 95, 101-02 (1940) (citations omitted) (noting that

"[t]he freedom of speech and ofthe press guaranteed by the Constitution embraces at the least the

liberty to discuss publicly and truthfully all matters ofpublic concern without previous restraint or

fear of subsequent punishment").

164. U.S. Const, amend. I (providing "Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances"). The Fourteenth Amendment to the U.S. Constitution

makes the First Amendment applicable to the states. See N.Y. Times Co. v. Sullivan, 376 U.S. 254,

277(1964).

165. Mills v. Alabama, 384 U.S. 214, 218, 220 (1966) (holding that the Alabama Corrupt

Practices Act as providing criminal penalties for publication ofnewspaper editorial on election day

urging people to vote a certain way on specific issues violated the constitutional protection of free

speech and press).

166. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (holding that the statute is

unconstitutional as punishing false statements against public officials 1) if made with ill will

without regard to whether they were made with knowledge of their falsity or in reckless disregard

of whether they are true or false or 2) if not made in reasonable belief of their truth).

167. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 640-41 (1994) (holding that people

should decide for themselves "the ideas and beliefs deserving of expression, consideration, and

adherence" and noting that "[o]ur political system and cultural life rest upon this ideal").

1 68. Carl E. Schneider, Free Speech and Corporate Freedom: A Comment on First National



374 INDIANA LAW REVIEW [Vol. 43:343

"preserve[d] an uninhibited marketplace of ideas in which truth will ultimately

prevail."
169 The First Amendment protections are paramount on issues involving

political debate.
170

For these reasons, the Supreme Court has continued to protect freedom of
political speech

171
and upholds statutes that affect this fundamental right only if

such restrictions "are content-neutral, are narrowly tailored to serve a significant

government interest, and leave open ample alternative channels of

communication."
172

The Supreme Court defines core speech protected under the First
Amendment as "both the expression of a desire for political change and a
discussion ofthe merits ofthe proposed change."

173
In limiting political speech,

the legislative body "must ... be prepared ... to articulate and support its
argument with a reasoned and substantial basis demonstrating the link between

the regulation and the asserted governmental interest."
174

The Supreme Court has found various expressions to be protected political
speech, inter alia, the right to peaceably assemble,

175
the right to criticize

Bank of Boston v. Bellotti, 59 S. Cal. L. Rev. 1227, 1238, 1267, 1269 (1986) (arguing that in

Bellotti, "the Court confirmed its discovery that commercial speech is not unprotected by the [F] irst

[A]mendment and announced a novel doctrine that corporate speech is not unprotected by the

[F]irst [A]mendment").

169. Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390, 400-01 (1969) (holding that the FCC's

order requiring that a person who is attacked on the air receive the opportunity to rebut was

authorized by Congress and enhanced freedom of speech under the First Amendment rather than

infringing this right).

1 70. Monitor Patriot Co. v. Roy, 40 1 U.S. 265, 272 ( 1 97 1 ) (finding that the First Amendment

"has its fullest and most urgent application precisely to the conduct of campaigns for political

office").

171. This protection applies to written materials and verbal communications. See Lamont v.

Postmaster Gen., 381 U.S. 30 1 , 302, 305 ( 1 965) (finding a statute unconstitutional that requires the

post office department to detain and destroy unsealed mail from foreign countries that is determined

to be communist political propaganda unless addressee returns a reply card indicating his desire to

receive such piece of mail).

172. United States v. Grace, 461 U.S. 171, 177, 183 (1983) (quoting Perry Educ. Ass'n v.

Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983)) (holding that statute denying "'display' of

any flag, banner, or device designed or adapted to bring public notice to a party, organization, or

movement" in or on the grounds of the Supreme Court building was unconstitutional because it

could not be justified as a reasonable place provision).

173. Meyer v. Grant, 486 U.S. 414, 421-22, 428 (1988) (holding that a prohibition against

paying circulators violated the First Amendment).

174. Mitchell v. Comm'n on Adult Entm't Establishments ofDel., 10 F.3d 123, 132 (3d Cir.

1993) (citation omitted).

175. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980) (indicating that

"[p]eople assemble in public places not only to speak or to take action, but also to listen, observe,

and learn; indeed, they may 'assemble] for any lawful purpose'") (quoting Hague v. CIO, 307 U.S.

496,519(1939)).



2010] VOTER DECEPTION 375

government officials,
176

campaign finance,
177

signage,
178

circulating petitions for

signatures
179

with limited regard for truth,
180

and speech regarding the American

flag.
181 Not all speech is protected, including some political speech, e.g., false

commercial speech,
182

electioneering within a certain distance of an entrance to

a polling place on Election Day,
183

and destroying secret service certificates.
184

The Supreme Court has also noted that "[regulations which permit the
Government to discriminate on the basis ofthe content ofthe message cannot be
tolerated under the First Amendment."

185 A statute is suspect under content-

176. Bond v.Floyd, 385 U.S. 116, 132, 136-37 (1966) (right to oppose national foreign policy

and other governmental actions or criticize government officials).

177. Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 440

(2001 ) (concluding that "[s]pending for political ends and contributing to political candidates both

fall within the First Amendment's protection ofspeech and political association"); see also Buckley

v. Valeo, 424 U.S. 1, 44 (1976) (holding that provisions limiting individual contributions to

campaigns were constitutional despite First Amendment objections).

178. Sambo's of Ohio, Inc. v. City Council ofToledo, 466 F. Supp. 177, 179 (1979) (noting

that communication by signs and posters is considered to be "a pure matter of speech").

179. Meyer v. Grant, 486 U.S. 414, 421 (1988) ("The circulation of an initiative petition of

necessity involves both the expression ofa desire for political change and a discussion ofthe merits

of the proposed change.").

180. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) ("Authoritative interpretations of

the First Amendment guarantees have consistently refused to recognize an exception for any test

of truth-whether administered by judges, juries, or administrative officials-and especially one that

puts the burden of proving truth on the speaker.").

181. The Court has upheld decisions recognizing the communicative nature ofconduct relating

to flags, including attaching a peace sign to the flag, refusing to salute the flag, and displaying a red

flag. See, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing Spence v. Washington, 418 U.S.

405, 409-10 (1974)) (upholding attaching peace flag to sign); W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 632, 636 (1943) (finding that refusing to salute the flag is constitutionally

protected); Strombergv. California, 283 U.S. 359, 368-70 (1931) (finding that displaying a red flag

is constitutionally protected).

182. United States v. Bell, 414 F.3d 474, 479-80 (2005) ("The threshold inquiry is whether

the commercial speech involves unlawful activity or is misleading.")

1 83

.

Burson v. Freeman, 504 U.S. 1 9 1 , 206, 211(1 992). In Burson, the Court recognized that

the exercise of free speech rights conflicts with the fundamental right to cast a ballot in an election

free from intimidation and fraud. Id. at 2 1 1 . Given the conflict between these two rights, the Court

held that "requiring solicitors to stand 100 feet from the entrances to polling places does not

constitute an unconstitutional compromise." Id.

184. United States v. O'Brien, 391 U.S. 367, 375 (1968). The Court held that "[a] law

prohibiting destruction of Selective Service certificates no more abridges free speech on its face

than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting

the destruction of books and records." Id.

185. Regan v. Time, Inc., 468 U.S. 641, 648-49, 659 (1984) (holding that the purpose

requirement contained in a statute that regulated publication or production ofillustrations offederal

currency was unconstitutional).



376 INDIANA LAW REVIEW [Vol. 43:343

based scrutiny if it "threatens to suppress the expression of particular ideas or

viewpoints."
186

But a statute is suspect under content-neutral scrutiny when it is
"intended to serve purposes unrelated to the content of the regulated speech,

despite their incidental effects on some speakers but not others." 187

A statute similar to the one used in Kansas serves as an example of content-
neutral nondiscriminatory regulation on political speech. Indeed, the Kansas

statute provides a complete description of voter deception, including electronic

deception. This statute makes it a crime to intimidate, threaten, coerce, or
attempt to intimidate "for the purpose of interfering with the right ... to vote"

and specifically outlaws deceptive practices by criminalizing "mailing,

publishing, broadcasting, telephoning, or transmitting by any means false
information."

188
It is sufficiently broad, but not unduly burdensome or vague.

It specifically outlaws certain practices that are generally deemed voter
suppression, and it also specifically identifies actions that constitute voter

deception. The statute is limited in scope and addresses the state's need to
protect its citizens from voter deception.

2. Political Speech and Anonymity.—The anonymous nature of voter
deception makes it difficult to prosecute. Moreover, the advent of electronic
deception exacerbates this difficulty.

189 The Constitution protects the ability to
remain anonymous190 but does not protect against some false speech,

191
while

protecting others.
192

For example, it can protect a candidate's ability to stretch

the truth, but no such protection exists for intentionally distributing false political

1 86. Leathers v. Medlock, 499 U.S. 439, 443, 447 (1991) (holding that Arkansas's extension

of its generally applicable sales tax to cable television services alone, or to cable and satellite

services, while exempting print media, does not violate First Amendment).

1 87. Simon & Schuster, Inc. v. Members ofN.Y. State Crime Victims Bd., 502 U.S. 105, 121-
22 n.* (1991).

188. Kan. Stat. Ann. § 25-2415 (2000). Kansas defines voter intimidation as threats,

coercion or inter alia, publishing false information, which is probably the most closely targeted

statute that addresses voter deception. See id.

1 89. See generally Alexander Tsesis, Dignity andSpeech: The Regulation ofHate Speech in

a Democracy, 44 WAKE FOREST L. Rev. 497 (2009) (discussing the difficulty in pursuing hate
speech conducted via the Internet).

190. Mclntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995).

191. United States v. Bell, 414 F.3d 474, 480 (2005) ("The threshold inquiry is whether the

commercial speech involves unlawful activity or is misleading.").

192. The Court will protect a candidate's promise to the electorate. See Brown v. Hartlage,

456 U.S. 45, 53, 55 (1982), which holds:

The candidate, no less than any other person, has a First Amendment right to engage in

the discussion of public issues and vigorously and tirelessly to advocate his own

election and the election ofother candidates. Indeed, it is ofparticular importance that

candidates have the unfettered opportunity to make their views known so that the

electorate may intelligently evaluate the candidates' personal qualities and their

positions on vital public issues before choosing among them on election day.

Id. at 53 (quoting Buckley v. Valeo, 424 U.S. 1, 52-53 (1976)).



2010] VOTER DECEPTION 377

information.

Although the Supreme Court has prescribed protections to allow for political

privacy in publishing material for public consumption and in developing

legislation to counter deceptive practices, legislators must consider the nature of

the actions that regularly involve the distribution of anonymous political
literature. The Supreme Court has held, "[u]nder our Constitution, anonymous
pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition

of advocacy and of dissent. Anonymity is a shield from the tyranny of the
majority."

193

Mclntyre v. Ohio Elections Commission demonstrates how the dissemination
ofknowingly false information differs from expressing one's political opinion.

194

The Court noted the importance of anonymous political literature
195

and the

state's authority to limit the right to free speech to protect against false or

misleading information and fraud.
196 The Court determined that the proper

analysis involved the application of"'exacting scrutiny' and [would] . . . uphold

the restriction only if it is narrowly tailored to serve an overriding state

interest."
197

Laws requiring identification of an author on political literature were
primarily developed to protect citizens and enable them to assess the
information's validity and integrity.

198
But preventative measures must not come

at the expense of eligible voters and should not involve efforts to outwit voters.

The Supreme Court has found that voter intimidation severely burdens on the
right to vote and efforts to prevent intimidation must involve a compelling state

interest.
199

193. Mclntyre, 514 U.S. at 357.

1 94. The Supreme Court reviewed Ohio's blanket prohibition against distributing anonymous

campaign literature. The Court considered whether the promotion was constitutional as applied to

the plaintiff's distribution of unsigned flyers opposing a school tax. Id. at 337-38, 340.

195. The Court noted, '"Anonymous pamphlets, leaflets, brochures and even books have

played an important role in the progress ofmankind.'" Id. at 341 (quoting Talley v. California, 362

U.S. 60,64(1960)).

1 96. See id. at 348; see also Rachel J. Grabow, Note, Mclntyre v. Ohio Elections Commission:

Protecting the Freedom ofSpeech or Damaging the Electoral Process?, 46 Cath. U. L. Rev. 565,

570 (1997) (detailing the First Amendment case law that addresses anonymous speech and assesses

the right to distribute anonymous literature under the Supreme Court's First Amendment rulings);

Note, Gutter Politics and the First Amendment, 6 Val. U.L. Rev. 185, 198 (1972); Erika King,

Comment, Anonymous Campaign Literature and the First Amendment, 21 N.C. CENT. L.J. 144

(1995).

197. Mclntyre, 514 U.S. at 347.

1 98. See Grabow, supra note 1 96, at 583-85 (indicating that identification statutes were often

held valid because of the state's interests "in facilitating the flow of information to the public and

maintaining the civility and integrity of the electoral process").

199. See Burson v. Freeman, 504 U.S. 191, 206 (1992). In Burson, the Court addressed

whether Tennessee's statute prohibiting the distribution of campaign paraphernalia or soliciting

votes within one hundred feet ofthe polling place violated the First and Fourteenth Amendments.



378 INDIANA LAW REVIEW [Vol. 43:343

Voter deception often arises from false information printed anonymously
with no indication ofthe true author or distributor.

200 The deceptive information
also may be printed with seemingly official seal from a governmental agency.201

The documents could credibly be considered "anonymous leaflets,"202 which the
Supreme Court has decided are afforded some constitutional protections.

The state needs to lessen the tensions between voter intimidation, voter
fraud, and other measures that undermine voter confidence, like voter
deception.

203
Additionally, the Constitution places even broader limits on

deceptive practices. The state has a compelling interest in ensuring that
information regarding the time, place, and manner of elections and voter
eligibility are accurately communicated. Protecting the accuracy of these

statements to preserve the integrity of the franchise and ensure access to voting
is a compelling state interest. Although political speech is strongly encouraged
in this democratic society, the Supreme Court has carved out a restriction on that
speech where the state is attempting to protect against harmful false information.
Clearly, no right exists for distributing false information that addresses the time,
place, and manner of elections, but just as clearly, no penalties exist.

3. Contrasting Campaign Finance as Speech.—The anonymous nature of
voter intimidation and deceptive acts and the protections provided against those

acts lie in stark contrast to campaign finance laws, where a contributor's identity
is required under federal statute.

204
For example, a primary challenge in

enforcing existing voter intimidation and deceptive practices laws is the
difficulty in identifying the culprit.

205
In many instances, political and Election

Day pamphlets are required to include some identifying information.206 Courts
have found that the requirement to include identifying information within the

province of the First Amendment is compelling, as was the state's interest in
addressing voter fraud and promoting the ability to investigate false claims.

207

Id. The Court found that the legislation passed constitutional muster. Id. at 21 1

.

200. See Howard Libit & Tim Craig, Politicking Heats Up as Election DayNears, Balt. Sun,
Nov. 4, 2002, at 1 A; Eric Siegel, Amid Stir, Voters Stream to Polls, Balt. Sun, Nov, 6, 2002, at

27A. A flyer was distributed in Pennsylvania falsely indicating that Republicans would vote on
November 2 and Democrats would vote on November 3 to cut down on lines. National

Campaign for Fair Elections, supra note 1, at 1

.

20 1

.

See National Campaign for Fair Elections, supra note 1

.

202. Mclntyre, 514 U.S. at 350.

203

.

The Court has also found that states have a compelling interest in preventing voter fraud

and intimidation. See Crawford v. Marion County Election Bd., 128 S. Ct. 1610, 1617, 1624

(2008).

204. See, e.g. , 2 U.S.C. § 43 1 (2006). Federal campaign finance laws regulate the money spent

by political actors to influence federal campaigns.

205. See supra Part III.B.2.

206. Some states require that the sponsor of the political literature be identified. See

McConnell v. Fed. Election Comm'n, 540 U.S. 93, 126 (2003), overruled by Citizens United v.

Fed. Election Comm'n, 130 S. Ct. 876 (2010).

207. See Seymour v. Elections Enforcement Comm'n, 762 A.2d 880, 885 (Conn. 2000).



20 1 0] VOTER DECEPTION 379

Much has been written about First Amendment rights and campaign
finance.

208
In the landmark case Buckley v. Valeo,

209
the Supreme Court

addressed whether restrictions on campaign contributions and expenditures, inter

alia, violated free speech.
210 The Court ruled that the restrictions on expenditure

limits

necessarily reduce[d] the quantity of expression by restricting the

number of issues discussed It is clear that a primary effect of these
expenditure limitations is to restrict the quantity ofcampaign speech by

individuals, groups, and candidates. The restrictions . . . limit political
expression "at the core ofour electoral process and ofFirst Amendment
freedoms."

211

Consequently, the lack of attention to the perennial occurrence in the

minority community and the lack ofprotection rise in sharp contrast to the well-
documented and legislated campaign finance rules barring anonymous political
literature. Indeed, any communications, published media or electronic media,

endorsing or criticizing a candidate must meet strict restrictions, including

acknowledging the source responsible for the information.
212

The First Amendment does not require identification in most political
speech.

213 The false, misleading political speech involved in voter deception
does not fall within this constitutional protection. Governments have a

compelling interest in preventing voter deception and can construct laws that are

narrowly tailored to meet those goals. The presence of deceptive practices and
intimidation seeks to quiet the voices ofvoters. Statutes must protect the ability

to challenge and correct voter suppression activities.
214

Legislation addressing

208. See, e.g., Yasmin Dawood, Democracy, Power, and the Supreme Court: Campaign

Finance Reform in a Comparative Context, 4 Int'l J. CONST. L. 269 (2006); Candice J. Nelson,

Problems in the Laboratories, 2 ELECT. L.J. 403 (2003) (reviewing MONEY, POLITICS AND

Campaign Finance Reform Lawinthe States (David Schultz ed., 2002)); Christopher J. Ayers,

Comment, Perry v. Bartlett; A Preliminary Testfor Campaign Finance Reform, 79 N.C. L. REV.

1788(2001).

209. 424 U.S. 1(1976).

2 1 0. The case centered on interpretations ofthe Federal Election Campaign Act, and the Court

found that provisions limiting individual contributions to campaigns were constitutional despite

First Amendment objections. Id. at 35.

211. Id. at 19, 39 (quoting Williams v. Rhodes, 393 U.S. 23, 32 (1968)).

212. I.R.C. § 501(c)(4)(A) ("Civic leagues or organizations not organized for profit but

operated exclusively for the promotion of social welfare, or local associations of employees, the

membership ofwhich is limited to the employees ofa designated person or persons in a particular

municipality, and the net earnings ofwhich are devoted exclusively to charitable, educational, or

recreational purposes.").

213. Mclntyre v. Ohio Elections Comm'n, 514 U.S. 354, 357 (1995).

214. Voter intimidation undermines not only an individual's ability to participate in the

electoral process but also affects group right to access the ballot. Voting is in large part a group

right. In traditional electoral schemes, such as one person, one vote cases, courts determine the



380 INDIANA LAW REVIEW [Vol. 43:343

voter deception falls squarely within constitutional parameters for restrictions on

political speech. The First Amendment does not protect one's ability to lie or
obstruct the democratic process. States must narrowly tailor their laws to address

the distribution of misleading fraudulent information and protect citizens' right

to speak freely.

C. Election Clause Powers

Governments have the power to legislate and restrict political speech.
Although laws exist, the patchwork ofapplicable language and lack ofpenalties

require strengthening and, in some instances, creating laws to address these
actions. Despite the government's relative inaction or questionable actions in

enforcing voter intimidation statutes, Congress is keenly stationed to provide

protections against the knowing propagation of false election materials and has
the constitutional authority to do so.

215
Notwithstanding the states' authority to

develop election administration laws governing the time, place, and manner of
elections, Congress maintains authority to make or alter the states' regulations
for the election of federal offices.

216
Recent cases under the Elections Clause

reinforce Congress's broad authority to regulate all aspects of the federal

officials election.
217

Congress's ability to use its Elections Clause power to "protect voters" from
false information in federal elections is clear.

218 As the Supreme Court held in
Burson v. Freeman™ the states have "a compelling interest in protecting voters
from confusion and undue influence" and in safeguarding "the integrity of its

election process."
220

Consequently, Congress has the authority to act under either

right as related to a particular group. See, e.g., Samuel Issacharoff& Pamela S. Karlan, Standing
andMisunderstanding in Voting Rights Law, 1 1 1 HARV. L. REV. 2276, 2282 n.30 (1998) (arguing

that one person, one vote cases "should be viewed as cases about group political power . . . rather

than purely about individual rights").

215. Congress has the power to regulate elections under the Elections Clause of the U.S.

Constitution. U.S. Const, art. I, § 4, cl. 1 (specifying that "[t]he Times, Places and Manner of

holding Elections for Senators and Representatives, shall be prescribed in each State by the

Legislature thereof; but the Congress may at any time by Law make or alter such Regulations,

except as to the Places of chusing [sic] Senators").

216. Congress can regulate the elections of Representatives and Senators. See, e.g., United

States v. Gradwell, 243 U.S. 476, 482 (1917); Ex parte Siebold, 100 U.S. 371, 383-84 (1879);

United States v. Manning, 215 F. Supp. 272, 286-87 (W.D. La. 1963); Commonwealth ex rel.

Dummit v. O'Connell, 181 S.W.2d 691, 693-94 (Ky. Ct. App. 1944).

217. Cook v. Gralike, 531 U.S. 510, 523-24 (2001) (quoting Smiley v. Holm, 285 U.S. 355,

366 (1932)) (finding that the Elections Clause "encompasses matters like 'notices, registration,

supervision ofvoting, protection of voters, prevention of fraud and corrupt practices, counting of

votes, duties of inspectors and canvassers, and making and publication of election returns'").

218. SeeAss'nofCmty. Org. for Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997).
219. 504 U.S. 191(1992).

220. Id. at 199 (quoting Eu v. S.F. County Democratic Cent. Coram., 489 U.S. 214, 228-29,



2010] VOTER DECEPTION 381

its Elections Clause or other constitutional powers to protect its citizens from

voter deception.

IV. A Legislative Response

The Supreme Court stated that "[n]o right is more precious in a free country
than that of having a voice in the election of those who make the laws under
which, as good citizens, we must live. Other rights, even the most basic, are
illusory ifthe right to vote is undermined."

221
Likewise, voter suppression affects

groups—racial, ethnic or language minorities—and the freedom to participate
without restraint in the democratic process. Groups' ability to vote is thwarted

when deceptive practices and other suppressive measures are allowed to continue
without penalty. Congress can use its constitutional authority to address the

current inequities in the lack of enforcement regarding voter deception.

The Supreme Court has held, "the government may regulate the time, place,
and manner of the expressive activity, so long as such restrictions are content
neutral, are narrowly tailored to serve a significant governmental interest, and

leave open ample alternatives for communication."
222 The nature of voter

deception, i.e., anonymity, targeting racial and language minorities, and

intentionally distributing false information in an attempt to deter targeted voters

from the polls, all contribute to the need for better statutory construction and

enforcement. The "right to vote freely for the candidate ofone's choice is ofthe
essence of a democratic society."

223
Connivery, falsehoods, and misleading

voters thwart and negate those freedoms.

The present voter intimidation and deceptive practices statutes are
dramatically underperforming. Policy reasons for addressing the weaknesses of

the federal statutes—such as allowing unfettered access to the electoral process,
providing accurate information to voters, inspiring voter confidence, and

ultimately promoting fundamental democratic ideals—also continue to exist.
Although recognizing its authority to do so under the Fourteenth Amendment and
other applicable constitutional amendments, Congress must either strengthen

existing statutes or adopt new legislation that covers the breadth of new
millennium attempts to intimidate and deceive voters.

The lack of clarity and enforcement illustrates the need for legislation that
clearly defines deceptive practices and develops mechanisms to ensure that such

acts are investigated and that legislation contains appropriate penalties. The most
important principles to consider are whether the person or party intentionally

distributed false information regarding the time, place, and manner ofan election
or falsely described voter eligibility. A thorough statute should also contain
extraordinary penalties if the distribution was knowingly disseminated through
a political party affiliation, campaign, or candidate. In this instance, conspiracy

231 (1989)).

221. Wesberry v. Sanders, 376 U.S. 1,17 (1964).

222. Burson, 504 U.S. at 197 (citation omitted).

223. Id. at 199 (citation omitted).



382 INDIANA LAW REVIEW [Vol. 43:343

principles should apply. Moreover, any voter suppression statute should contain

both a private right of action and civil and criminal penalties. In addition, if the

government opts to impose separate laws for voter deception, where the

misinformation included threats of incarceration or deportation, prosecutors

should also charge the perpetrators under applicable voter intimidation statutes.
224

A more focused voter deception statute need not include a requirement of
racial or purposeful discrimination. It should, however, include accelerated

penalties for evidence that the illegal practice targeted a particular racial, ethnic,

or language group. It is much more difficult to prove that an act ofviolence was
precipitated with thoughts of racial animus or hatred than proving that an

individual knowingly disseminate false information related to the voting process.

If a purposeful component is required, most perpetrators would argue that the
distribution was based on political affiliation instead of racial identity.225 The
mere act ofpurposefully distributing false information should satisfy any statute.

The government should implement a tiered system to ensure that penalties will
deter deceptive practices.

A. A Proactive Approach

Any attempt at fashioning anti-voter deception legislation must include a
proactive approach to addressing and correcting the misinformation. The
government's approach must contain both proactive and reactive components to

ensure that citizens' ability to participate in the political process is not

diminished. Although it has not traditionally served in the capacity as educator,

in the deceptive practices context, governmental agencies must correct

misinformation in a timely manner in order to limit its impact on the affected
community.

Currently, no statute or administrative regulation requires the government to

provide corrective information. Such a requirement would constitute a proactive
approach to governing and election administration. In comparison to regulation

and protection in areas such as food and product safety, the government allows

voter deception to linger unanswered. The federal government transmits
information on food safety and product liability to curb the harm to the general
public,

226
and the same should occur for the fundamental act of voting. When

224. The federal government could utilize 42 U.S.C. 1 97 1 (b) (2006) or 1 8 U.S.C. 594 (2006).

See supra notes 97-97, 1 02 and accompanying text. States can utilize their broadly written statutes

that contain an intent component as well as the presence of threats in the absence of specific

legislation. See supra Part II.

225. This type ofresponse has been raised in redistricting cases. See e.g. , Georgia v. Ashcroft,

539 U.S. 46 1 , 469-70 (2003) (involving state legislators attempting to reapportion partisan districts

and increase minority voting strength).

226. See generally U.S. Consumer Product Safety Comm., Recalls and Product Safety News,

http://www.cpsc.gov/cpscpub/prerel/prerel.html (last visited Oct. 10, 2009). If the federal

government can employ a process for notifying citizens of problems with food, toys and other

consumer products, it can develop a similar notification process for voter suppression and



2010] VOTER DECEPTION 383

voter suppression occurs, the federal or state government, or both, should have

a central office that receives such information at the state and federal levels and

provides corrected information to the public, especially the affected community.

Some states have already seen it as their responsibility to correct misinformation
about the time, place, and manner ofelections.

227 The federal government should
use websites, toll-free numbers, press releases, and other means to address
deceptive voter practices. Additionally, federal agencies have been slow to

respond to false voter information. The government should utilize state agencies
and local media to develop public service announcements that warn of the
distribution of false election information in the locale and provide the correct

information to insure that the democratic process is not contaminated.

Moreover, the federal government has the components necessary to engage

in a regular voter education program through the use of existing laws. For

example, the NVRA228 requires designated agencies,229 such as the Department
of Motor Vehicles, social services agencies, libraries, and others, to ask clients
if they would like to register to vote.

230
But registering is merely the first

important step in realizing one's electoral potential. The federal government
must take the next step and require those agencies designated under the NVRA
to provide basic voter education information through signage and state-generated

brochures.
231

States should also require designated agencies to provide clients

correcting and exposing misinformation.

227. See Donna Marie Owens, Election Officials Vigilant Over Voter Intimidation,

Suppression, Oct. 27, 2008, http://www.publicbroadcasting.net/wesm/news.newsmain/article/

0/0/1398250/WESM.LocalRegional.News/Election.Officals.Vigilant.Over.Voter.Intimidation.S

uppression (Maryland Attorney General Doug Gansler announced that citizens in predominately

African-American neighborhoods had received flyers that said, "Ifyou owe back child support or

you owe parking tickets or you're an immigrant, you may be arrested, if you come to vote on

Election Day."); see also Md. Att'y Gen. Off., Report on the Attorney General's Task

ForceonVotingIrregularities (2008), http ://www.oag.state.md.us/Reports/VotingTaskForce

Repor4_28.pdf.

228. 42 U.S.C. § 1973gg-l (2006); see also supra note 8.

229. Id. § 1973gg-5 (requiring that "[e]ach state shall designate agencies" where voters can

register to vote and allowing the state to include "public libraries, public schools, offices ofcity and

county clerks (including marriage license bureaus), fishing and hunting license bureaus, government

revenue offices, unemployment compensation offices, and offices not described in paragraph (2)(B)

that provide services to persons with disabilities" to be places where people can register to vote).

230. See supra note 7. TheNVRA has met much criticism as an under-utilized statute. Critics
have also argued that the Department of Justice—the statute's primary enforcer—has in past
administrations left many portions of the Act unenforced and thus has left thousands of citizens

unregistered. See, e.g., Steve Carbo et al., Ten Years Later: A Promise Unfulfilled; The National

Voter Registration Act in Public Assistance Agencies, 1995-2005, DEMOS, July 2005 (Nonprofit

advocacy groups Demos, ACORN, and Project Vote found that most public assistance agencies did
not incorporate voter registration into their services as the NVRA requires.).

231. The proposed legislation proposed in this Article would also require state election

agencies to supply NVRA-designated agencies with various information regarding the time, place



384 INDIANA LAW REVIEW [Vol. 43:343

with information from the state's election official regarding primary and general

election dates, as well as where to find additional information about the proper

polling place.

Much misinformation centers on citizens receiving information containing
the wrong date for an election. Each NVRA-designated agency and other
election-related agencies could advertise primary and general election day

information. They could also provide citizens with clear information about the
methods of voting, i.e., absentee, early voting, election day procedures, and

provisional ballots, which directly prevent and address deceptive practices as

well as promote public participation and confidence. Accordingly, the

government should encourage and inform its citizens about election day

occurrences and dispel any myths prior to the election relating to eligibility, time,

place, and manner requirements for casting a ballot. Once the government
receives a credible report regarding the distribution of false information, it must

act expeditiously to correct that information.

B. Private Right ofAction

Any legislation that addresses deceptive acts must include a private right of
action. Wronged individuals or groups should have the ability to pursue legal
action in order to deter future occurrences. In most other contexts, such as

product liability or food safety, the consumer is allowed to pursue legal action

against a manufacturer or producer.
232 The federal government has created the

Consumer Protection Agency, which is responsible for protecting consumers
from, inter alia, false advertising, and faulty products. In the voting context,

citizens currently do not have an opportunity to litigate wrongs perpetrated

against them for deceptive acts.
With this private right of action, the statute should also allow plaintiffs to

recover costs and attorney fees. A person who is dissuaded from voting via this
misinformation for fear that she is ineligible or believes the document originated

from a governmental agency has been defrauded ofan opportunity to exercise the

and manner of voting. For example, Section 203 of the VRA requires covered jurisdictions to
provide all election-related materials in languages covered under Section 203 . 42 U.S.C. § 1 973aa-

la(b) 2006). States must provide identical information in both English and the covered language,

e.g., Spanish or Hmong. Id. Here, as opposed to providing that information only at the voter

registrar or other election-related office, the information would also disseminate to social services

agencies. As with Section 203, the state governments should also provide a toll-free hotline to

report deceptive acts. Once the state receives and verifies the information and finds it credible, it

must begin to broadcast corrected information. Additionally, any signage or brochures must

include websites including appropriate contact information where citizens can report deceptive acts

and provide copies of deceptive documents.

232. See Ind. Code § 34-20-2-1 (2008); Mich. Comp. Laws Ann. § 600.2947 (West 2009);

Ohio Rev. CodeAnn. § 2305.10 (West 2009); see also In re Bridgestone/Firestone, Inc., 288 F.3d

1012 (7th Cir. 2002); In re ConAgra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689 (N.D. Ga.

2008); Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826 (Minn. 1988).



20 1 0] VOTER DECEPTION 385

fundamental right to participate in the democratic process and should have the

ability to pursue legal actions against the responsible individuals.

C. Criminal and Civil Penalties

Disseminating information to a protected racial group with the intent to

suppress votes is an overt act ofdiscrimination, and governments should penalize

those who disseminate this information with criminal and civil penalties.233

Various federal statutes empower the government to seek modest penalties
against persons who intimidate voters.234 Advocates realized the weakness of

233. Jordan T. Stringer, Comment, Criminalizing Voter Suppression: The Necessity of

Restoring Legitimacy in Federal Elections and Reversing Disillusionment in Minority

Communities, 57 EMORY LJ. 101 1, 1042, 1047-48 (2008) (offering the following suggestions to

deter voter suppression: 1) "the use of phone harassment legislation should continue as an

innovative prosecutorial" technique, 2) "prosecutors should extend" the technique to "robo-calls,"

3) "Congress should amend mailfraud legislation" to include mailings that "defrauds someone of

his or her right to vote," 4) "Congress should [pass] the legislation [proposed by] Senators Schumer

and Obama," and 5) Congress "should resolve the conflicting perspectives ofvoter access and voter

security in the name ofelectoral integrity and constitutional fidelity."); see also Pardo, supra note

78, at 329-30 (discussing election fraud and arguing for use of the Travel Act, 18 U.S.C. § 1952

(2006), which is used to prosecute offenders whose conspiracies require interstate travel, and the

Mail Fraud Statute, 1 8 U.S.C. § 1 341 (2006), which is used when mail fraud is involved in election

fraud or intimidation schemes); Rothschild & Wolinsky, supra note 101.
234. See, e.g. , 42 U.S.C. § 1 97 1 (c) (2006) (empowering the Attorney General to bring a civil

action to prevent or enjoin the activity and noting that "the Attorney General may institute for the

United States, or in the name of the United States, a civil action or other proper proceeding for

preventive relief, including an application for a permanent or temporary injunction, restraining

order, or other order"); supra Part I.A.2. 42 U.S.C. § 1 973j(a) allows the Attorney General to bring

a civil action and seek up to $5,000 and impose five-year prison sentence.

Id. § 1973j(d) provides,

Whenever any person has engaged or there are reasonable grounds to believe that any

person is about to engage in any act or practice prohibited by section 1973, 1973a,

1973b, 1973c, 1973e, 1973h, 19731, or subsection (b) of this section, the Attorney

General may institute for the United States, or in the name of the United States, an

action for preventive relief, including an application for a temporary or permanent

injunction, restraining order, or other order ....

Id.

18 U.S.C. § 594 (2006) imposes a fine or one year of prison upon persons who intimidate,

threaten or coerce persons from exercising the right to vote. Section 594 provides:

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 to vote as he may choose . . . shall be fined under this title or imprisoned not

more than one year, or both.

See Rothschild & Wolinsky, supra note 101, at 393-427 (providing an exhaustive list ofapplicable
civil, criminal and administrative laws that the federal government has available to combat voter



386 INDIANA LAW REVIEW [Vol. 43:343

Section 1 1(b) and argued for strengthening the VRA, and specifically suggested
that Congress strengthen its voter intimidation laws.

235 They expressly suggested
that persons who engaged in harassment or intimidation ofminority voters should
face criminal sanctions and that Congress should provide a private right ofaction

for individuals who have suffered from this illegal intimidation. They also
suggested that the injured individuals should be eligible to receive injunctive

relief, statutory damages, and attorneys' fees.
236

After reauthorization of the

VRA in 2007, Congress did not address this issue.237 Conversely, the NVRA
includes a private right ofaction, but most litigation pertaining to this statute has

included other voter access-related issues, such as the state's unwillingness or

inability to comply with its voter registration requirements.
238 None of the

litigation involved voter intimidation or voter deception.

The Obama/Schumer bill would have increased monetary penalties from
$5,000 to $ 1 00,000 and would have increased possible prison time from one year
to five years.

239
These types ofincreases would make the statute meaningful and

would hopefully exhibit the seriousness associated with the actions.
Additionally, ifthe government seeks to criminalize deception, it should also

strengthen civil penalties. The existing penalties could serve as a deterrent for
individuals. When groups engage in deceptive practices, e.g., the Republican
Party in the Jesse Helms example,

240
statutes must impose stricter penalties. If

prosecutors can link deceptive actions to a political campaign, such as the 2006

example of Prince George's County, Maryland,
241

it should consider escalating

penalties, especially if it can demonstrate that the candidate or members of the
political party knew that the information contained intentionally false
information.

Conclusion

The establishment of the democratic form of government and the framers'
view of the importance of having the people voice their content or discontent

through the ballot have sustained much debate and controversy. Deceptive
practices undermine a citizen's right to participate freely in the democratic

intimidation and other election law violations).

235. see vernon francis et al., lawyer's comm. for civil rights under law,

Preserving a Fundamental Right: Reauthorization of the Voting Rights Act (2003),

http://faculty.washington.edu/mbarreto/courses/Voting_Rights.pdf.

236. Id. at 14.

237. See 42 U.S.C. § 1973 (2006).

238. See Voting Rights Coal. v. Wilson, 60 F.3d 1411,1412-13 (9th Cir. 1995) (action trying

to enjoin California from failing to comply with NVRA); Ass'n of Cmty. Org. for Reform Now v.
Edgar, 880 F. Supp. 1215 (N.D. 111. 1995) (private action brought against Illinois for failure to

comply with provisions ofNVRA).

239. Deceptive Practices and Voter Intimidation Act, S. 453, 1 10th Cong. § 3 (2007).

240. See supra notes 123-24.

24 1

.

See supra Part LA.



2010] VOTER DECEPTION 387

process. When the right to vote is stolen via fraudulent, intimidating, or
deceptive acts, not only are the particular voter or group of citizens

disenfranchised, but their confidence in the democratic process is also

undermined. The pervasive inability or disinterest in prosecuting these acts leads
the perpetrators to believe that their actions can continue without penalty and

regard for their injury to democracy.

This right to participate embodies the essence of the democratic voting

process. When this access is thwarted by connivery, deception, intimidation, or
fraud, the fabric of the nation begins to unravel. Securing the threads of our

democratic fabric, through enforcement of constitutional rights and statutory

protections, tightens the bonds offreedom and protects the confidence and access

that citizens need and require to participate free from deceptive practices.

Governmental entities should wrap themselves in the protections afforded under

various constitutional provisions, including the Equal Protection Clause, to

protect its citizens from these acts. Where Congress lacks the willingness to
pursue such acts, the affected citizenry should have the opportunity to pursue a

private right of action in an effort to preserve the legitimacy of the democratic

process.