Candidates, campaigns, and political parties have been misleading voters for about as long as there have been elections. Last year, we saw some pretty blatant and shameful GOP tactics — Maryland’s infamous “Democratic Sample Ballot” come to mind — which, fortunately, did not work as well as intended.
But that doesn’t mean the dirty tricks were inconsequential. These tactics undermine the political process, deceive voters, weaken confidence among voters, and turn people away from voting (which, in all likelihood) is the point. The New York Times editorialized today on a new congressional measure that would “make deceiving or intimidating voters a federal crime with substantial penalties.”
The bill would also criminalize making false claims to voters about who has endorsed a candidate, or wrongly telling people — like immigrants who are registered voters in Orange County — that they cannot vote.
Along with defining these crimes and providing penalties of up to five years’ imprisonment, the bill would require the Justice Department to counteract deceptive election information that has been put out, and to report to Congress after each election on what deceptive practices occurred and what the Justice Department did about them.
The bill would also allow individuals to go to court to stop deceptive practices while they are happening. That is important, given how uninterested the current Justice Department has proved to be in cracking down on election-season dirty tricks.
If the bill can clear the constitutional hurdles, this is probably a worthwhile idea. It is, however, a big “if.”
The Times’ editorial said the proposal, backed of course by congressional Dems, is “careful to avoid infringing on First Amendment rights,” and steers clear of “regulating speech.” I hope so. I haven’t seen the legislation’s wording, and have no idea how “deceptive” claims are defined. Any kind of regulation of political speech is inherently dangerous, so one hopes lawmakers were careful in crafting this legislation.
Taking a different perspective, Ed Morrissey recommends more of a free-market approach, suggesting the proposal seeks to “protect people from their own naivete.”
That’s not the proper role of the government, and especially when it comes to political speech. The best defense against deception is education and research, and the responsibility for that lies with the voters themselves.
I genuinely want to believe that. I also believe voters need to be far more responsible about being better informed. But certain dirty tricks undermine the idea of a level playing field. Some prefer to undermine the process, intentionally, because they see public dishonesty as a key to victory. It’s already a felony to intimidate and/or threaten voters who want to participate in their democracy, and this strikes me as part and parcel of the same objective.
To reiterate, I haven’t seen the bill. Maybe it’s a constitutional minefield and the NYT editorial is off-base. But if the legislation makes elections more honest and fair without regulating political speech, it deserves serious consideration.