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Could Donald Trump be prosecuted for saying the election was rigged? That was the question on the mind of one Michigan Supreme Court justice as the court reviewed the prosecutions of two right-wing activists who spread false information to Black voters.
During an oral argument Thursday, the court wrestled with the free-speech implications of prosecuting Jack Burkman and Jacob Wohl, two political provocateurs who are accused of sending tens of thousands of robocalls prior to the 2020 election warning residents of Black neighborhoods they’d be targeted by debt collectors and could be subject to “mandatory vaccines” if they chose to vote by mail.
One member of the court, Republican appointee Richard Viviano, wondered aloud whether the state law used to charge Burkman and Wohl could also be used to charge someone like Trump over his frequent statements that the absentee voting process is “rigged.”
Viviano called “despicable” the tactics Burkman and Wohl are accused of using in a bid to aid Trump by suppressing the votes of African Americans, but the judge said the court needed to be concerned about the sweep of the law aimed at outlawing election-related trickery.
Viviano noted that the law used to charge the pair doesn’t just prohibit using a “corrupt means or device” to “deter” someone from voting. It also bars the use of that sort of scheme merely to “influence” a voter. All sorts of misleading or false statements made in the course of an election might fit that definition, said the justice, an appointee of former GOP Gov. Rick Snyder.
Michigan Deputy Solicitor General Eric Restuccia said the law only prohibits false statements about the voting process and not those that impact which candidates get support.
“This is not a statute designed to stop political debate,” Restuccia said. “False information or misleading information about the procedures of voting is not constitutionally protected.”
Viviano did not sound satisfied with the prosecutor’s responses. “I have to say: I just see you diverting off in different directions,” said the justice, who declared he was trying to be “bipartisan” in flagging concerns about prosecutors policing political rhetoric.
It was not immediately clear how many of the court’s other justices shared Viviano’s concerns, although at least one joined in pressing the state’s lawyer to answer Viviano’s questions. The court currently has four Democratic appointees and three Republican ones.
A lawyer for Burkman, Timothy Doman, said the state could ban knowing lies about the mechanics of voting, but the language in the law used to charge his client is too murky.
“False statements about the time, place, and manner [of voting] could be proscribed in the way the attorney general has advocated, ” Doman said. “The problem is: It's not this statute.”
According to court documents, Burkman and Wohl paid a vendor to make about 85,000 robocalls in the summer of 2020, targeting Black voters in Michigan, Ohio, Illinois, Pennsylvania and New York.
“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 recording said. “The [Centers for Disease Control and Prevention] 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.”
Last year, Burkman and Wohl pleaded guilty in Ohio to similar charges stemming from the same wave of calls. They were each sentenced to two years probation, a $2,500 fine and ordered to perform 500 hours of community service registering voters in Washington, D.C.
In 2021, the Federal Communications Commission proposed a fine of $5.1 million against Burkman and Wohl for allegedly delivering more than 1,100 of the calls to mobile phones without the owners’ consent.