Michigan Supreme Court, in Case Against Burkman and Wohl, Holds It Is Constitutional to Punish Intentional Lies About When, Where, or How People Vote (Relevant Also to Pending Mackey Case)

cheap speech, chicanery, First Amendment theory

I have been arguing that it does not violate the First Amendment to make it a crime to intentionally lie about when, where or how people vote. The Supreme Court suggested as much in the Mansky case in 2018. I made this argument in my Cheap Speech book, and in an amicus brief I filed with Protect Democracy and the Yale Media Freedom and Information Access Clinic in the Doug Mackey Second Circuit case involving his conviction for violating federal law by trying to trick Black voters into voting by text or social media hashtag. (That case was argued in April and awaits decision.)

Last week, the Michigan Supreme Court in People v. Burkman considered whether John Burkman and Jacob Wohl could be constitutionally charged with violating Michigan law for robocalls intended to deter Black voters from voting. The Court held that some election related speech could be criminally punished without violating the First Amendment. It narrowly construed Michigan law in ways that avoided the constitutional problem. Here is the relevant part of the majority opinion on this point:

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 U.S. 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; 138 S Ct 1876; 201 L Ed 2d 201 (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.

Two justices dissented in part, believing the statute could not properly be construed to be limited in the way favored by the majority. They did not reach the constitutional questions.

Thanks to Eugene Volokh for the pointer.

UPDATE: I had missed Derek’s earlier coverage of this case when travelling.

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“Federal appeals court to reconsider case affecting Attorney General Dave Yost’s authority to block proposed ballot issues”

ballot access, direct democracy

Cleveland.com:

A federal appeals court will reconsider a recent decision that could affect Ohio Attorney General Dave Yost’s ability to block future proposed ballot-issue campaigns via a state law that gives his office authority to sign off on proposed language that those campaigns must circulate with petitions to qualify for the ballot.

The Sixth Circuit Court of Appeals, in a 2-1 decision late last month, ordered Yost to approve petition language for a proposed state constitutional amendment that would make it easier for Ohioans to sue police for misconduct. Yost, a Republican, had repeatedly rejected petition language proposed by backers of the Protecting Ohioans Constitutional Rights amendment for numerous reasons, including the amendment’s proposed title.

But the appeals court announced on Monday that enough of the court’s judges had voted to perform what’s called an en banc review, in which every judge on the court votes on a case, and not just the randomly selected three judges that issue an initial decision. The broader review will replace the previous decision, issued by two judges appointed by Democratic presidents.

My earlier coverage is here.

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“334 public officials in 5 swing states have undermined or cast doubt on elections: study”

election subversion risk

USA Today:

Hundreds of public officials in five key swing states have denied election outcomes, tried to overturn an election, or made statements to undermine an election, a new study says.

The study identified 334 of these public officials in Arizona, Georgia, Michigan, North Carolina, and Wisconsin running the gamut from a state’s second-highest elected official to local boards that certify election results. Those closely divided states are likely to decide the 2024 presidential election.

The study by Public Wise, a left-leaning nonprofit group that advocates for representative democracy, is the most comprehensive study to date of state and local public officials who have power over elections but whose commitment to election fairness has been questioned.

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“Race, the Ballot, and Hegemony: What the Struggle over Immigrant Voting Teaches Us About Rightwing Mobilization in the U.S.”

Uncategorized

In New Political Science from Ron Hayduk and Anthony Pahnke. Abstract:

While there has been an increase in rhetoric and efforts to block expanding voting rights to noncitizens around the United States, there is a relative lack of academic research examining the ideology, political actors, and strategy behind such efforts. In addressing this gap, we explore anti-immigrant voting rights campaigns as they relate to broader rightwing mobilization and voter suppression efforts. We draw upon the literature on Gramsci’s conception of hegemony to document and analyze efforts to use state power to change constitutions and election laws in ways that politically disenfranchise working class people of color in order to institutionalize white minority rule. We explore the nature of this political project and how more conventional rightwing actors dovetail with grassroots extremism by examining both historical and contemporary cases. We show how these networks have employed a mix of legal, administrative, and violent tactics during the turn of the twentieth century as well as in the contemporary period to politically realize a common, exclusionary ideology to shape the electorate and polity. We argue struggles over noncitizen voting rights reflect debate about distinct visions of who properly constitutes “the people,” and what is and should be the nature of the American polity: are we a white Anglo Christian republic or a multiracial egalitarian democracy? In so doing, we argue the rise and fall – and reemergence – of noncitizen immigrant voting rights in the U.S. represents a microcosm of the broader “voting wars” embroiling the nation.

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