Free speech and voter fraud

"Come out to vote on November 6."

"Before you come to vote make sure you pay your parking tickets, motor vehicle tickets, overdue rent, and most important any warrants."

That's the text of a flier distributed in African-American and Hispanic communities the weekend before Election Day in 2002 when Robert L. Ehrlich Jr. ran for governor against Kathleen Kennedy Townsend.

November 6 would be too late to vote; it was a Wednesday. Failure to pay the rent or parking or motor vehicle tickets is not a barrier to voting; neither is an outstanding warrant.

The Maryland General Assembly first outlawed voter suppression efforts in 1896, making it illegal to use "force, threat, menace, intimidation, bribery, or reward, or offer...[to] otherwise unlawfully, either directly or indirectly, influence or attempt to influence any voter in giving his vote."

In 2002, our law prohibited using such illegal tactics to "influence a voter's voting decision." The federal Voting Right Acts of 1965 made it illegal to interfere with a voter's right "to vote or to vote as he may choose."

But these laws did not cover an attempt to influence a voter's decision whether to go to the polls to cast a vote. That's why we introduced the Voter's Rights Protection Act of 2005. Its enactment made such conduct illegal.

In his recent commentary, Professor Richard Vatz criticized Emmet C. Davitt, the prosecutor in the recent robocall case, for stating that his goal was to "send a message to political campaigns to clean up their acts." This is a "democratically repugnant threat to free speech," asserts Mr. Vatz ("Schurick's behavior wrong, but not criminal," Dec. 11).

Political speech is at the core of the protections afforded by the First Amendment. It can be regulated only by laws that are narrowly tailored to serve a compelling state interest. Consequently, political speech is actionable only when it is false or made with reckless disregard for the truth.


That is difficult to accomplish, however, when fraudulent fliers are distributed the weekend before Election Day or robocalls are made shortly before the polls close.

"Deceptive voter practices are not pranks and they threaten our democracy," declared Senator Ben Cardin when he introduced legislation to address this scourge.

Our democracy benefits from a robust debate on the issues. Voter suppression is alien to that process.


The writers, both Democrats, represent Baltimore's 41st District in the General Assembly.

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