Back in June, the Michigan Supreme Court narrowed the construction of its “voter intimidation statute.” Five justices agreed the case should be remanded, while two would have held the conduct outside the statute. I blogged about that case here, and as a brief reminder, here’s the content of the call:

Hi, this is Tamika Taylor from Project 1599, the civil rights organization founded by Jack Burkman 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 [Centers for Disease Control and Prevention (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 beware of vote by mail.

On remand, the Michigan Court of Appeals took the new narrower construction and concluded the case the defendant’s motion to quash should be denied (effectively allowing the prosecution to proceed), in a divided 2-1 decision issued last month. The decision in People v. Burkman and People v. Wohl is here. The dissenting opinion is here. The majority and dissenting opinions principally debated over whether the call was “related to voting requirements or procedures. From the majority:

We conclude there was probable cause to believe the robocall related to voting procedures. The Burkman II Court did not define “procedure.” When a term is not defined, it may be interpreted in accordance with its ordinary meaning, its context, or in consultation with a dictionary definition. See People v Lewis, 302 Mich App 338, 342; 839 NW2d 37 (2013). A “procedure” is “a particular way of accomplishing something or of acting,” or “a series of steps followed in a regular definite order.” Merriam-Webster’s Collegiate Dictionary, (11th ed). The robocall informed voters that, if they chose to vote by mail, their information would be made part of a public database. Further, the robocall stated the database “will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts[.]” Lastly, the robocall warned about the CDC “pushing” to access and use those records “from mail-in voting to track people for mandatory vaccines.”

There can be no reasonable dispute that voting by mail is a voting procedure. That is, voting by mail is “a particular way of accomplishing” voting, which fits the definition of “procedure.” The robocall was related to the procedure, because it alleged that, if a voter used the voting procedure identified, certain negative events “will” occur. Those events involved a creation of a database that “will be” accessed by police and credit card companies to track down warrants and debts.

Indeed, instead of attempting to dispute this, defendants contend the robocall was not actually about the voting procedure, but about consequences. Defendants read “voting procedures” in a vacuum, ignoring that the robocall need only “relate to” the voting procedure. As is clear from the language used in it, the “consequences” cited by the robocall were attached solely to voting by mail, which is a voting procedure. Moreover, the definition of procedure as “a series of steps followed in a regular definite order” contemplates that procedure will incorporate one act after the other, in effect a consequence. Even so, defendants insist voting procedures as used in the limiting construction cannot include consequences of voting because, otherwise, political speech would be unconstitutionally impaired. The concern by defendants is overstated because, in making the argument, they conflate “voting procedures” with “voting.” Defendants provide an example of the consequence of voting for a certain candidate, not a consequence of using a particular voting procedure. The distinction is important because our Supreme Court was specific that the intentionally false speech must relate to a voting requirement or procedure. This means that intentionally false speech about voting for a particular candidate would not be covered, because it relates to the person’s vote, not how it is cast. In the present case, a jury could conclude that the robocall was designed to intimidate or prevent mail-in voting by offering that the process resulted in the creation of public database utilized to address a voter’s outstanding arrest warrants or debts.

And from the dissent:

The robocall appears to have been an effort to dissuade the recipient of the call, African-American citizens, from voting by absentee ballot. The robocall was crude, inappropriate, offensive, and worthy of contempt. Indeed, these actions should be condemned as contrary to that which we strive for as a nation and as individuals. . . .

. . . There is no dispute that defendants’ conduct did not relate to voting requirements. However, the majority concludes that defendants’ conduct related to voting procedures on the basis that the robocall relayed the alleged negative consequences of engaging in absentee voting. Because I conclude that the consequences of engaging in absentee voting are not related to the manner and means of voting, I would hold that the second part of the Supreme Court’s test has not been satisfied. . . .

For example, focusing on voting procedures, a robocall that falsely informs voters that the polls will remain open three hours late, see Burkman, _ Mich at _; slip op at 18 n 11, or falsely informs voters that they may cast a ballot via text message, see United States v Mackey, 652 F Supp 3d 309, 320 (ED NY, 2023), would violate MCL 168.932(a). Likewise, in the context of absentee voting, a robocall that informs voters that the deadline for turning in an absentee ballot was extended would also violate MCL 168.932(a). These examples each relate to the mechanics of voting.

Nothing in this malicious call related to the mechanics of absentee voting. There are no false statements about the steps by which voting by mail is accomplished Rather, the robocall addressed the alleged actions that entities unrelated to the regulation of elections—in this case, police departments, credit card companies, and the CDC—could take using absentee voter database. These entities’ possible use of the voter database says nothing about the mechanics by which voting by mail occurs. The robocall related to the alleged consequences of absentee voting.

It seems likely the case will go back to the Michigan Supreme Court, and I think that decision would be affirmed, so the lingering question is whether the United States Supreme Court might be asked to hear the First Amendment issue in the case sometime next year.