In the wake of former Robert L. Ehrlich Jr. aide Paul Schurick's conviction this week on fraud charges related to an election night 2010 robocall that urged voters in Democratic households to "relax" and stay home, Mr. Schurick's defenders have begun to criticize the law on which he was found guilty. The statute makes it a crime for anyone to "willfully and knowingly ... influence or attempt to influence a voter's decision whether to go to the polls to cast a vote through the use of force, fraud, threat, menace, intimidation, bribery, reward, or offer of reward." Now Mr. Schurick's attorney says he may appeal on First Amendment grounds, and some of Mr. Schurick's defenders have chimed in to say it is a plainly unconstitutional abridgement of political speech.
That is an interesting question. Laws against fraudulent commercial speech have long been recognized, but the courts have typically given wide latitude to political speech. The Supreme Court in recent years has been particularly expansive on this front, to the extent that it has essentially legalized unlimited anonymous corporate election spending on First Amendment grounds. There's no telling how courts might eventually view a conviction on this statute.
The legislative history in this case provides an interesting side note to the question. The law was passed in 2005, and it was somewhat controversial -- but not because of this particular provision. It was part of a piece of legislation that dealt primarily with the procedure for handling provisional ballots, and although it passed easily in the House of Delegates (104-29, including several favorable votes from Republicans), it came down to a party-line vote in the Senate and was vetoed by then-Governor Ehrlich.
However, Mr. Ehrlich's veto message mentions nothing about the provision at issue in Mr. Schurick's case. He objected to the bill because he believed a section allowing provisional ballots to be counted even if they were cast in the wrong jurisdiction "expands the opportunity for individuals to abuse and negatively influence election outcomes." When the legislature returned in January, 2011, it overrode the veto.
The fact that the free speech question didn't come up when the law was passed doensn't mean anything about how the courts might ultimately view it, of course. And the courts overturned more than one high-profile law the legislature passed in those days. But it is interesting to note that something Mr. Schurick's defenders now view as obviously unconstitutional didn't raise red flags at the time.
--Andrew A. Green