Citing First Amendment, Michigan Supreme Court narrows construction of voter intimidation statute after 2020 robocall prosecution

People v. Burkman and People v. Wohl, decided yesterday by the Michigan Supreme Court, a 5-2 decision. The majority narrowed construction of the statute and remanded for further consideration. The dissenting opinions, which concurred in part, would have held that the conduct fell outside the scope of the statute. The core of the holding is that the criminal statute still extends to “proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote.” On remand, the court will decide whether the facts of the case fit that here. From the opinion (lightly revised):

Leading up to the 2020 election, defendants created and caused the automatic dissemination of a prerecorded telephonic message (robocall) to various residents in the 313 area code. The robocall stated as follows:

“Hi, this is Tamika Taylor from Project 1599, a civil rights organization founded by Jack Burman and Jacob Wohl. Mail-in voting sounds great, but did you know that if you vote by mail your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The CDC is even pushing to use records from mail-in voting to track people for mandatory vaccines. Don’t be finessed into giving your private information to the man. Stay safe and be aware of vote by mail.”

According to the prosecutor, the purpose of the robocall was to deter Black electors from voting in the 2020 general election by spreading misinformation regarding the consequences of mail-in voting. . . .

[The court engaged in statutory interpretation to conclude it could extend to the conduct at issue here.]

We hold that the statute’s catchall “or other corrupt means or device” is unconstitutionally overbroad because it poses a “realistic danger” of infringing constitutional free-speech protections. More specifically, the catchall in MCL 168.932(a) poses a substantial risk of chilling political speech. Political speech is “an essential mechanism of democracy,” because it provides “the means to hold officials accountable to the people” and for the people “to make informed choices among candidates for office . . . .” Citizens United v Fed Election Comm, 558 US 310, 339 (2010) (quotation marks and citation omitted). For these reasons, political speech has been historically protected under the First Amendment and laws that burden it are subject to strict scrutiny. Id.; Susan B Anthony List v Driehaus, 814 F3d 466, 473 (CA 6, 2016) (“Political speech is at the core of First Amendment protections.”).

The broad sweep of the catchall language in MCL 168.932(a) conceivably prohibits several forms of purely political speech, including statements made via campaign speeches, rallies, door-to-door campaigning, flyers, and buttons. These political materials are often designed to influence an elector’s vote, whether it be to affirmatively vote for a candidate or proposal, not to vote for a candidate or proposal, or not to vote at all, and so satisfy MCL 168.932(a)’s provision that a person be attempting “to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.” Although the term “corrupt” in the catchall provision limits MCL 168.932(a)’s scope, it remains likely that political speech is encompassed by “any other depraved or immoral method or scheme” in influencing or deterring votes. For example, one may consider a person posting false information online about a candidate in an effort to influence electors not to cast their votes for the candidate an immoral scheme, thus fulfilling the catchall phrase of MCL 168.932(a). See United States v Alvarez, 567 US 709, 718 (2012) (providing that false statements are generally within constitutional protection). Although the state has an undeniable interest in protecting the electors’ franchise, see Mich Alliance for Retired Americans v Secretary of State, 334 Mich App 238, 257 (2020), and in “preserving the integrity of their election processes,” In re Request for Advisory Opinion, 479 Mich 1, 19 (2007), that right is not absolute. Laws enacted to preserve these interests must still be narrowly drawn to avoid chilling more speech than is necessary, and the catchall provision in MCL 168.932(a) is not. We conclude that the statute regulates substantially more political speech than its plainly legitimate sweep allows.

Having so concluded, this Court must address next the appropriate remedy. . . .

Because invalidation should be avoided where possible, we offer a limiting construction of MCL 168.932(a)’s catchall “other corrupt means or device” language. Specifically, we hold that when the charged conduct is solely speech and does not fall under any exceptions to constitutional free-speech protections, MCL 168.932(a)’s catchall phrase operates to proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote. This limiting construction cures the serious and realistic danger that MCL 168.932(a)’s catchall provision infringes constitutional free-speech protections by limiting the statute’s reach to areas where government regulation is constitutionally provided or has been historically upheld. See US Const, art 1, § 4, cl 1 (imbuing the states with the authority to regulate the time, place, and manner of congressional elections); Const 1963, art 2, § 4(2) (giving the Michigan Legislature the same authority for state elections and also providing the power “to preserve the purity of elections” and “to guard against abuses of the elective franchise”); Minnesota Voters Alliance v Mansky, 585 US 1, 19 n 4 (2018) (“We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”). Intentionally false speech about voting requirements or procedures serves no purpose other than defrauding electors with respect to their franchise. Compare Citizens United, 558 US at 339-340 (discussing the purpose of constitutionally protected political speech).

We reverse the Court of Appeals insofar as it concluded that MCL 168.932(a) was not overbroad, and we offer a limiting construction of the statute’s catchall phrase. We remand to the Court of Appeals so that Court may decide whether defendants’ conduct falls within the limiting construction of MCL 168.932(a) offered here and, if so, resolve defendants’ remaining constitutional arguments.

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