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Location: Michigan, United States

Let's say we have two major political parties - let's call them YellowParty and PurpleParty. YellowParty obtains a list of reliable PurpleParty voters and sets out to falsely inform these voters that their voter registrations have been cancelled. YellowParty sets up text banks, phone banks, and canvasses for its volunteers. YellowParty volunteers send text messages such as - for example - "ATTENTION: Your voter registration has been cancelled. Do not attempt to vote." YellowParty volunteers also make phone calls sharing similar messages. They also knock on the voters' doors (canvassing) with similar messages.

YellowParty volunteers never threaten voters, impersonate law enforcement or government officials, or claim that they are from the Secretary of State's office or other government entity.

Setting aside the efficacy of YellowParty's program*, let's consider its legality. Would this program violate Michigan state law and/or US federal law?

Additionally, if this program was not run by YellowParty itself, but instead outsourced to a political action committee (PAC), would that change its legal status?


*The efficacy of YellowParty's program is another matter. Many voters would be rightly skeptical of the messages. They may know that messages from the Secretary of State's office come via official mail. Other voters would simply check their voter registration status and confirm that they are still registered. However, as is the case with any false advertisement (political or otherwise), some voters will believe it.

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The conduct described would be a felony.

Two men where just convicted of state crimes this week for very similar conduct in Ohio.

Jacob Wohl and Jack Burkman pleaded guilty to felony telecommunications fraud yesterday. According to Cleveland.com, the pair "placed thousands of robocalls with false information to largely minority and Democratic voters in Cleveland in the months before the November 2020 election." They face up to a year in state prison.

(Source)

Michigan state law also criminalizes this conduct, which also violates federal law.

Other legal consequences that they face as a result of their conduct according to the same source include the following civil and criminal cases:

The men have been sued in federal court in New York City and face a $5.1 million fine levied by the Federal Communications Commission. Wohl and Burkman are appealing criminal charges filed against them in Detroit stemming from a similar bogus robocall scheme targeting Black voters.

As this blurb notes, Michigan itself is in the process of prosecuting these men criminally for part of the same pattern of conduct.

While it isn't inconceivable that these particular offenders may have some valid grounds for an appeal in the particular Michigan case that they are appealing (e.g. due to irregularities in their particular prosecutions), the validity of the statutes criminalizing this conduct is not seriously subject to question.

The First Amendment protects a great deal of intentionally false politically motivated speech about policy and political ideas or more generally why one should vote in a particular way. But, the First Amendment does not protect a large scale organized campaign outright intentional lies about the eligibility to vote of particular voters.

This distinction is explored, for example, in a 2018 law review article on political lies and the First Amendment, citing, e.g., Burson v. Freeman, 504 U.S. 191, 210 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983); Eu v. S.F. Cty. Democratic Ctr. Comm., 489 U.S. 214, 228 (1989) (“The State’s second justification for the ban on party endorsements and statements of opposition is that it is necessary to protect primary voters from confusion and undue influence. Certainly the State has a legitimate interest in fostering an informed electorate.”); Tashjian v. Republican Party of Conn., 479 U.S. 208, 220 (1986); Jenness v. Fortson, 403 U.S. 431, 442 (1970) (describing the state interest in “avoiding confusion, deception, and even frustration of the democratic process at the general election”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); and Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997).

Based upon these cases, taken as a whole, the author of the law review article concludes that:

In sum, many intentional lies aimed at undermining election administration are already unconstitutional under the Fourteenth Amendment, and if told with discriminatory partisan motives, also violate the First Amendment.

But what about intentional lies told by private actors, along the lines of the examples provided above (poll workers, campaign volunteers, and the like)?

While such lies might be thought to be less coercive than government lies, they also pose a serious threat to democracy. Although private individuals must be guaranteed ample freedom to speak on matters of public concern, I believe intentional lies meant to undermine the right to vote may be regulated. The Supreme Court, albeit in another context, has relaxed First Amendment rights when weighed against the right to vote. Judicial deference is given to “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.”

Time and again, the Court, in evaluating various election administration issues, has affirmed a government interest in avoiding electoral confusion.

If one can prove that someone else orchestrated or conspired in the conduct, such as a political party, it and the party officials involved can have legal responsibility for this conduct as well.

One of the darlings of federal prosecutors, the mail and wire fraud statute, for example (the elements of which are set forth here by the U.S. Justice Department) would probably also apply to this fact pattern. This source cites some of the following authorities and recited their holding as follows:

United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994) (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir. 1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme), cert. denied, 115 S.Ct. 193 (1995); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant's knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) ("Wire fraud requires proof of (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme.").

The remedy that is not available, however, as a general rule, is to invalidate the election that was swayed by the illegal conduct.

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  • 1
    I hope "interstate wire communication" also covers wireless communication?
    – gerrit
    Commented Oct 27, 2022 at 8:12
  • 4
    @gerrit yes, the statute reads "...by means of wire, radio, or television communication..."
    – Geier
    Commented Oct 27, 2022 at 9:14
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    @GACy20 Sounds like it's time for the scammers to learn semaphore or smoke signals.
    – Barmar
    Commented Oct 27, 2022 at 13:53
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    @GACy20 These laws are written with early 20th century lawyer level scientific definitions not 21at century physicists level definitions, that have been generalized as necessary in case law. Also semaphore or smoke signals communications would still violate state law and RICO, so the crooks wouldn't gain much from using it.
    – ohwilleke
    Commented Oct 27, 2022 at 18:45
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    @Barmar "Curses, our plans have been foiled because our target audience doesn't understand semaphores or smoke signals!"
    – Andy
    Commented Oct 27, 2022 at 23:26

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