By Yvonne Wenger, The Baltimore Sun
9:39 PM EDT, May 29, 2012
Political consultant Julius Henson must pay the state $1 million for putting out 112,000 robocalls intended to discourage black voters from going to the polls on Election Day 2010, a federal judge ruled Tuesday.
"Voter suppression in Maryland will not be tolerated," Attorney General Douglas F. Gansler said in a statement. "The court's opinion and damages award will hopefully make political consultants think twice before using these types of illegal dirty tricks again."
Henson violated the Telephone Consumer Protection Act with the "express purpose of suppressing the votes of a minority group in a contested statewide gubernatorial election," U.S. District Judge Catherine C. Blake wrote in a 13-page memorandum. Blake also found Henson's employee Rhonda Russell guilty in the civil case.
Gansler, a Democrat, brought the case against Henson and his company, Universal Elections. Henson was paid $112,000 for his work with Republican former Gov. Robert L. Ehrlich Jr. when he faced off against Democratic incumbent Gov. Martin O'Malley.
"We should not make a scarecrow of the law for the benefit of the powerful," Edward Smith Jr., the lawyer for Henson, said in an email. "Setting justice up for the fear of the vulture allows justice to be picked clean for the benefit of those who manipulate the people not toward enlightenment, but ignorance."
Henson said he hoped the decision would be appealed. The defendants can challenge it before the U.S. Court of Appeals for the 4th Circuit. Neither Henson nor Russell could be reached late Tuesday.
The order dictates that Henson pay $1 million to the office of the attorney general and Russell pay $10,000. How the money would be used wasn't immediately clear.
In a separate criminal case, Henson was found guilty earlier this month on a single conspiracy count stemming from the 2010 robocalls. He had been acquitted on three of the four election fraud charges he faced.
Smith has said Henson will seek a retrial on the conviction.
Henson faces sentencing June 13 on the conspiracy count for failing to include an authority line on the call, which would have altered recipients that it was paid for by Erhlich's campaign. He faces up to a year in prison and a $1,000 fine in that case.
In the civil case, Gansler had sought a $10 million judgment against Henson, noting that the law allows for a fine of up to $104 million, or $1,500 for each of the nearly 69,500 calls that were actually received.
Blake, the judge, said a judgment for $10 million would have been disproportionate to the size of the Henson's company and his presumptive ability to pay.
"While Henson's efforts on behalf of the Ehrlich campaign were ultimately unsuccessful, his actions nonetheless damaged the public faith in the democratic process that is at the core of our system of government," Blake wrote.
The call, recorded in Russell's voice, went out to voters about two hours before the polls closed. It said, "I'm calling to let everyone know that Governor O'Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We're OK. Relax. Everything is fine. The only thing left is to watch it on TV tonight. Congratulations and thank you."
Obama wasn't on the ballot that year.
Henson argued during the criminal case that the call attempted to use reverse psychology to bring voters out to the polls.
The call went out to voters in Baltimore and Prince George's County, both home to large populations of black Democratic voters. The call did not identify the source as being Ehrlich's campaign.
Because of that, the state argued that Henson violated a disclosure provision in the Telephone Consumer Protection Act.
During the civil proceeding, Henson refused to answer questions about his knowledge of the Telephone Consumer Protection Act, citing his Fifth Amendment rights against self-incrimination, according to the court memorandum. Russell acknowledged that she was aware of the law.
The judge concluded that both Henson and Russell were aware of the requirement that an automated call be identified by the sender.
Donald F. Norris, professor and chairman of the Department of Public Policy at the University of Maryland, Baltimore County, said the ruling should put political consultants on notice.
"I imagine it puts Henson out of the political consulting business for the rest of his life," Norris said. "This should serve notice on people who play fast and loose with the election laws."
Ehrlich has said he did not know about the call. His campaign manager, Paul Schurick, was convicted in December on four charges related to election fraud. He was sentenced to 30 days of home detention and 500 hours of community service.
Henson testified during the criminal trial that Schurick instructed him to produce the call.
Copyright © 2014, The Baltimore Sun