Chief election officials in several states want to make it illegal for someone to knowingly spread false information about an election, a move that raises questions around first amendment protected speech.
The Democratic secretaries of state for Michigan and Minnesota told the Guardian they’re supporting legislation that would criminalize people who spread misinformation about an election. Michigan’s secretary of state, Jocelyn Benson, said the law would prevent people from tweeting that Election Day is on a Wednesday or saying that voting machines are insecure, when they know that information to be false.
Benson said that since she took office in 2019, she has seen an increase in people lying to voters about their rights, which she considers an election security threat.
“We have to hold those folks accountable, otherwise it’s going to continue and it will harm our democracy,” she said.
Most states already prohibit interference with the election process in some manner, but the specificity in the laws when it comes to the spread of misinformation or the use of deceptive practices before an election varies from state to state.
Minnesota secretary of state Steve Simon, also a Democrat, is supporting a bill proposed in his state that would prohibit anyone within 60 days of an election from causing “information to be transmitted by any means that the person intends to impede or prevent another person from exercising the right to vote; and knows to be materially false”.
The legislation clarifies that “includes but is not limited to information regarding the time, place, or manner of holding an election; the qualifications for or restrictions on voter eligibility at an election; and threats to physical safety associated with casting a ballot”. Any person who violates the law is guilty of a gross misdemeanor, punishable by up to one year in jail and up to a $3,000 fine.
“It isn’t criminalizing speech,” Simon said. “No one wants to do that. It’s everyone’s right, within limits of course of the first amendment, to think something and say what they think. This is different. This is a bill aimed at interference with the election process.”
Colorado secretary of state Jena Griswold, who leads the Democratic Association of Secretaries of State, said the focus must be on protecting people’s first amendment rights.
“We have to safeguard the freedom of speech while also safeguarding Americans having the right facts about elections,” she said.
The proposed laws come in the absence of federal protection against election misinformation. Democrats in Congress have proposed the Deceptive Practices and Voter Intimidation Prevention Act, most recently in 2021, which would prohibit deceptive practices, false statements, and voter interference regarding federal elections. But the legislation, which was first proposed by then Senator Barack Obama in 2007, has stalled.
The type of misinformation being criminalized is critical to whether or not the laws would violate the first amendment. Paul Smith, an election lawyer and senior vice-president of the Campaign Legal Center, said that spreading false information with the intention of interfering with an election would be the campaign equivalent of fraud, which is not protected by the constitution.
“Those kind of lies, that get people to lose their right to vote or vote differently than they otherwise would because you deceived them, would be pretty unprotected,” he said.
“There’s a distinction between criminalizing the lies that George Santos told about his educational background and criminalizing things that are actually trying to induce people to mess up in their vote in a way that causes them to not have the right to vote,” he added.
But lies about the security of voting machines – an example Benson from Michigan gave as one of the types of speech she would want included in a new law – would be murkier and may not be protected by the first amendment.
“You could make an argument that if people don’t trust the machines, they won’t show up to vote,” Smith said. But he pointed out that this talking point has become popularised by conspiracy theorists and former president Donald Trump. “People like Trump say it all the time, so it’s in the grey area.”
Voting rights groups including the Lawyers’ Committee for Civil Rights Under Law and Common Cause have in the past advocated for laws against deceptive practices that would protect voters from misleading information about voting in the lead up to an election. They note that deceptive practices, like distributing flyers or sharing social media posts with false information about voter eligibility, often target non-white voters in minority neighbourhoods.
“It is an insidious form of vote suppression that often goes unaddressed by authorities and the perpetrators are virtually never caught,” the groups wrote in a 2018 report.
Ahead of the 2022 election, voters in at least five states reported getting text messages directing them to the incorrect polling location. The company that sent them said they were done in error, but previous attempts at misleading voters before an election have been found to be deliberate. In 2004, flyers were posted around minority neighbourhoods in Milwaukee, Wisconsin, purportedly from the “Milwaukee Black Voters League” saying that: “If you’ve already voted in any election this year, you can’t vote in the presidential election.”
The flyers also claimed that “if anybody in your family has ever been found guilty of anything, you can’t vote in the presidential election”, and if you violate these laws, “you can get 10 years in prison and your children will get taken away from you”.
