Intentionally deceiving voters should be a crime

Democrats in the House and Senate recently introduced the Deceptive Practices and Voter Intimidation Prevention Act, a bill that would prohibit the spread of false election information that’s specifically meant to prevent voters from casting ballots. (Full disclosure: Our organization, the Brennan Center for Justice at NYU School of Law, helped draft earlier versions of this legislation.)

The bills’ introduction came in a week that has seen an attempted hack of the emails of three 2018 Senate campaigns and revealed a trove of fake Facebook pages and accounts likely meant to stir chaos as we approach midterms – reminders that the integrity of our elections is increasingly fragile in the digital age.

Those seeking to interfere in our midterms have a growing toolbox, built on techniques of voter deception and intimidation that America’s elections have weathered before. While these most recent revelations concern hacks and phony activism, it was just a couple months ago that Special Counsel Robert Mueller indicted foreign actors who used social media accounts to try to convince voters to just stay home in the 2016 election. As we approach the November election, there’s every reason to believe bad actors will try the same thing again.

While social media platforms and regulators struggle to respond to the age of online misinformation and mayhem, the Deceptive Practices Act (originally introduced by then-Senator Barack Obama in 2007) proposes a common-sense safeguard for voters, making it illegal to knowingly publish things like incorrect polling locations or times in an attempt to drive people away from the polls.

Such attempts to confuse voters aren’t fantasy: last year’s special election in Alabama saw voters in Jefferson County – home to the predominantly black city of Birmingham – subject to text messages indicating their polling site had changed.

These are new pieces of a longer, sordid history of voter suppression in America.

Look at the Republican Party’s National Ballot Security Task Force during 1981 New Jersey gubernatorial race, which flooded communities of color with volunteers and off-duty law enforcement wearing armbands to challenge and intimidate voters. The aggressive tactics led to a settlement requiring the Republican National Committee’s ballot security operations to be reviewed by a federal court for the next 35 years (an agreement that lapsed last year).

Trump campaign advisor Roger Stone served as an advisor to the winning gubernatorial candidate in 1981. Stone denied any involvement in the RNC effort that led to the settlement. Yet in 2016 he seemed to advocate something similar with a coordinated campaign under the names “Vote Protectors” and “StopTheSteal.”

The behavior of then-candidate Trump in 2016 shifted our nation’s standards in a way that makes organized misinformation seem like acceptable election-year conduct. During the campaign, he frequently and loudly claimed that the election was “rigged,” made false claims of widespread voter fraud, and encouraged his supporters to engage in poll-watching activities in “other communities” in large cities.

While his supporters seemed willing to heed his call, some explicitly expressing their intention to engage in intimidation and racial profiling, they did not – perhaps thanks to the increased efforts of election officials prepared to prevent them from doing so. But we must be prepared for similar campaigns in the future, because when such “challengers” go out to the polls, their activities can easily descend into intimidation. The Deceptive Practices and Voter Intimidation Prevention Act would increase the maximum penalty for voter intimidation.

As we head into a tumultuous election season with a potential surge of new or newly invigorated voters particularly vulnerable to misinformation campaigns, we need the Deceptive Practices Act in our toolkit. It would not only prohibit suppressive and misleading information 60 days before an election, it would also create a process to ensure voters actually receive the correct information after such an act. So if voters received misleading emails or Facebook messages falsely claiming a polling site had changed, local election officials would be required to inform voters of the correct polling place, so their ballots could still be cast and counted.

With high stakes for both political parties ahead of the 2018 midterm balloting, and foreign agents ready to exploit familiar pathways of influence, Congress should draw this bright line in defense of American voters.

Sean Morales-Doyle is a counsel in the Democracy Program at the Brennan Center for Justice at NYU School of Law, a law and policy institute that focuses on voting rights, campaign finance reform, ending mass incarceration, and preserving liberties while maintaining national security. Sidni Frederick is the special assistant to the director of the Democracy Program at the Center.

Tags Ballot Security Task Force Barack Obama Deceptive Practices and Voter Intimidation Prevention Act Robert Mueller Roger Stone Voter suppression

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