Michigan Supreme Court hears 2020 election robocall misinformation case ⋆
Two far-right operatives who made tens of thousands of calls spreading misinformation about voting across Midwestern states ahead of the 2020 presidential election, had oral arguments taken Thursday in their robocall voter intimidation criminal case in the Michigan Supreme Court.
Investigators who have looked into calls made in Michigan, Ohio and New York estimate that Jack Burkman and Jacob Wohl, who both have a history of manufacturing conservative conspiracy theories, made about 85,000 robocalls with false information about voting in an attempt to keep people from participating in the 2020 election in which Republican former President Donald Trump lost to Democratic President Joe Biden.
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Michigan Democratic Attorney General Dana Nessel filed multiple felony charges in 2020 against Burkman and Wohl involving voter intimidation and using computers to commit crimes against election laws.
In Michigan, Burkman and Wohl made thousands of calls in cities where the majority of residents are minority groups like Detroit, where 12,000 calls were made and 79% of residents are Black. The prosecution in the case has argued the focus on communities of color was intentional by the pair.
The defense for the two men has argued up to the Supreme Court that criminal charges should be dropped as their actions were not “menacing” with threats of violence and their misinformation efforts are protected by the First Amendment.
In New York, a federal judge found that Burkman and Wohl violated several federal and state civil rights laws in the robocall scheme, including the Ku Klux Klan Act, which among other protections from the KKK and other terrorist organizations, prohibits interfering with a qualified voter’s right to participate in an election.
In Ohio, a judge ordered Burkman and Wohl to spend 500 hours registering members of minority and low-income communities to vote in November 2022, among other repercussions, after pleading guilty to one count of telecommunications fraud.
“The defendants in this case are not sympathetic,” Timothy Doman, attorney for Burkman told the Supreme Court justices, noting he is not attempting to defend the motives of his client, but rather to address that the election laws, MCL 168.932, they are charged under are ill-equipped to address current election practices.
The law states: “A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.”
“I think it’s just too blunt of an instrument to be used to police disinformation in our elections in 2023,” Doman said.
Specifically, the legal definition of “menace” goes undefined in this context in Michigan, a state Court of Appeals denial to dismiss the case reads.
“Defendants contend that the robocall was not menacing because it did not involve a threat of physical assault. Because the term ‘menace’ is not defined in MCL 168.932, we may consult a dictionary definition to determine the plain and ordinary meaning of the word. …. The term ‘menace’ as defined in the dictionary does not require an accompanying physical component, but may be established through a threat,” the opinion from Judge Anica Letica and Judge Michelle Rick said.
The opinion outlines one Detroit resident’s experience with receiving robocalls from Burkman and Wohl.
Timothy Doman, attorney for Jack Burkman, participates in oral arguments before the Michigan Supreme Court on Nov. 9, 2023. (Photo: Anna Liz Nichols)
In the summer 2020, retired firefighter Derrick Thomas was receiving robocalls and not picking up the phone. A message left said, “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 [Center for Disease Control and Prevention (CDC)] 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.”
The opinion said although Thomas didn’t believe that he was physically in danger, he had concerns for his safety in the current political climate.
That summer, according to the opinion, Wohl emailed Burkman suggesting that the robocall attached in the message be sent “to black neighborhoods in Milwaukee, Detroit, Philadelphia, Charlotte, Richmond, Atlanta, and Cleveland.”
The opinion adds that that summer Burkman messaged Wohl to discuss the success of the robocalls, saying, “I love these robocalls getting angry black call backs, win or lose, the black robocalls was [sic] a great idea.”
Justices grilled attorneys on the defense and prosecutions side on what is actually considered free speech or political criticism, and what willfully keeps individuals from voting, crossing over into a violation of the law.
Justice Richard Bernstein told the court that differentiation is likely the key issue in a decision.
Justice Richard Bernstein | Supreme Court photo
“The whole idea here was that their goal in doing what they did, the calls, was to basically interfere and cause confusion and lie about the process and procedure. And that means all the attorney general is basically arguing is that you can say whatever you want, if you want, the way you want. But if you knowingly engage in a process that endangers the integrity of the voting procedure … what is accurate and what is not [that’s the question],” Bernstein said.
Nessel was present at the oral arguments on Thursday, releasing a written statement after the hearing.
“This robocall is an egregious example of voter suppression, targeting Black voters with flat-out lies meant to intimidate them from going to the polls and expressing their voice in our democracy,” Nessel said. “My department is intent on bringing these men to justice for a clear and malignant example of voter intimidation and suppression. Beyond that, we must defend Michigan’s law barring this deceptive and insidious behavior, ensuring that this important law remains in place to defend voters from such malice and misinformation.”
The state Supreme Court can now either side with the prosecution, and order the continuation of the criminal case or side with the defense and dismiss the case.
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authored by Anna Liz Nichols
First published at https%3A%2F%2Fmichiganadvance.com%2F2023%2F11%2F09%2Fmichigan-supreme-court-hears-2020-election-robocall-misinformation-case%2F