A Democratic Super PAC’s New Trump Ad Might Be Borderline Criminal

Here’s something to scramble your brain: A progressive super PAC in Pennsylvania put out an advertisement trying to suppress mail-in voting by MAGA Republicans, and the Trump campaign responded by saying that the super PAC was violating the same law that Trump has been charged with violating in his federal election interference case. To boot, Trump’s lawyers said in their letter that the super PAC’s actions were just like those of Douglass Mackey, a Trump supporter that the Department of Justice successfully prosecuted for falsely telling Black supporters of Hillary Clinton in 2016 that they could vote for her by text. In the end, the super PAC’s actions appear despicable, but it is much more questionable whether the advertisement crossed a legal line.

The 30-second advertisement in question opens with words onscreen: “MAGA PATRIOTS: LISTEN TO OUR PRESIDENT.” It then turns to a series of statements in which Donald Trump disparages the safety and security of voting by mail, claiming fraud and corruption. It ends with the words: “Stand strong with PRESIDENT TRUMP AGAINST MAIL-IN VOTING.” A disclaimer on the bottom explains that the ad was paid for by “Pennsylvania Values,” and was not authorized by any candidate or committee.

Pennsylvania Values, in turn, is a super PAC allied with Democrats and Democratic Sen. Bob Casey of Pennsylvania. The intention appears to be to suppress Republican turnout by getting fewer Republicans to vote by mail. Those who don’t vote by mail might have some issue with voting on Election Day, and some may end up not voting. Although Trump indeed railed against voting by mail relentlessly in 2020, given his (publicly unacknowledged) failures in the last election, he has now started speaking up its benefits, part of a Republican effort to get Trump supporters to “bank” their vote.

The advertisement sends a terrible message, and the super PAC’s tactics deserve condemnation. All eligible voters should be encouraged to vote in whatever way is most convenient for them, including mail-in voting. This advertisement is only going to fuel more distrust of voting by mail among Trump supporters by reminding them of his earlier statements, and ramp up further negative polarization between the parties by highlighting the voting wars and engaging in a dirty trick: The message is not coming from “MAGA Patriots,” but from partisans on the left.

The Trump campaign’s response is as interesting as this voter suppression effort from the left. In a letter sent to the super PAC, Trump’s lawyers wrote:

The letter also claims that the super PAC is violating part of the federal Ku Klux Klan Act that bars the use of “force, intimidation, or threat” to interfere with voting rights.

The Trump campaign’s citation to the Mackey case and the federal statute, 18 U.S.C. Section 241, is doubly interesting. First, on the Mackey case, as I explained at Slate in April:

Mackey was convicted under Section 241 and his case is currently on appeal to the 2^nd Circuit, where he is arguing, among other things, that his conviction violates the First Amendment because it squelches too much free speech. I filed an amicus brief along with the Protect Democracy Project and the Yale Media Freedom and Information Access Clinic arguing that so long as Section 241 is read to apply in speech and voting cases only to lies about when, where, or how people vote, the law does not violate the First Amendment.

If that reading is right, the new super PAC ad may not violate Section 241. The ad never lies to voters about when, where, or how to vote. It instead uses Trump’s own words expressing Trump’s distrust of mail-in voting to imply that Trump still does not want his supporters to vote by mail (this implication may be false, but who knows with Trump, who recently called mail-in voting “treacherous”). It also implies that the speech is coming from MAGA supporters. The ad doesn’t quite say the ad is paid for by Trump forces, though it does refer to Trump as “OUR PRESIDENT.” It includes false statements made by Trump about ballots being found in creeks. Maybe that should count as a super PAC lie about how people vote? Perhaps this ad is artfully crafted to potentially just stay on the line of legality under the test we think works in the Mackey case. The super PAC will need some good lawyers.

This also doesn’t seem like a case of force, threats, or intimidation under the Ku Klux Klan Act, though perhaps a case could be made under other parts of the act. It doesn’t appear to violate a different federal statute that prevents a candidate from misrepresenting that he is speaking for another candidate. That law does not apply to super PACs. There may be some potential tort claims here, but the Trump letter doesn’t make a strong case for criminal liability.

This point about Mackey is important, but we should not overlook the chutzpah of Trump’s lawyers citing Section 241. Even if the super PAC’s actions in this case were criminal, they pale in comparison to what Trump has been charged with in the federal election interference case: The federal complaint filed by the Department of Justice against Trump alleges that his actions violated Section 241 in attempting to overturn the election results through activities—including the fake-electors schemes—in numerous states that were meant to deprive voters of their fair right to vote. That case is currently on hold after Trump appealed to the Supreme Court that he had absolute immunity from prosecution for actions he took as president, and the court will issue an opinion on that any day now. The Supreme Court could well shield Trump from a far more obviously criminal act than what he accuses this super PAC of under the same statute.

But just because what Pennsylvania Values is doing does not rise to the level of election subversion that Trump committed, and maybe not even to criminal conduct, does not make it OK. Progressives and Democrats should think twice before going down the road of trickery and voter suppression.