Election robocall defense targets Maryland anti-fraud law

A Baltimore judge is weighing the constitutionality of Maryland election law’s anti-fraud provisions, as a political operative stands trial for allegedly conspiring and attempting to sabotage Democratic Gov. Martin O’Malley’s 2010 re-election with robocalls urging Democrats to stay home and watch their victory on TV.

Defendant Julius Henson’s lawyer told Judge Emanuel Brown on Monday that the law’s “vague” prohibition on the use of fraud to deter voter turnout violates the constitutional right to free speech. That First Amendment right is particularly strong when the speech at issue is part of a political campaign, attorney Edward Smith Jr. said.

But Deputy State Prosecutor Thomas M. “Mike” McDonough countered that the election law is “narrowly tailored” to accomplish two ends.

“The First Amendment does not protect fraudulent speech,” McDonough told Brown. “The statute could not be more narrowly drawn” to protect both the right to free speech and the right to vote, McDonough added.

The motion was one of several heard on what was scheduled to be the first day of Henson’s trial in Baltimore City Circuit Court.

The judge ended the day without ruling on the motions, telling both sides to return on Tuesday morning.

A similar challenge to the law’s constitutionality failed in November when it was tried by lawyers for Henson’s alleged co-conspirator, Paul E. Schurick, former campaign manager for former Gov. Robert L Ehrlich Jr., O’Malley’s re-election opponent.

Baltimore City Circuit Judge Lawrence P. Fletcher-Hill rejected the argument and a jury convicted Schurick of four counts: “attempting to influence a voter’s decision whether to go to the polls to cast a vote through the use of fraud;” sending robocalls without an “authority line” to inform voters the calls were made at the Ehrlich campaign’s behest; and conspiring with Henson on each of those counts.

Schurick, 55, faces up to 12 years in prison when he is sentenced Feb. 16. His lead attorney, A. Dwight Pettit, has vowed to challenge the law’s constitutionality on appeal.

Henson, 62, faces the same charges, as well as a count of conspiring to violate Maryland election laws generally, a charge that Fletcher-Hill had dismissed in Schurick’s case.

Maryland State Prosecutor Emmet C. Davitt and McDonough plan to argue at Henson’s trial, as they did at Schurick’s, that Henson was retained by the Ehrlich campaign ostensibly to reach out to the black community.

But, with that community firmly in O’Malley’s camp, Schurick and Henson conspired on Election Day to suppress the black vote in Baltimore and Prince George’s County by telling registered Democrats there that the election was won and their votes were unnecessary, prosecutors allege.

As part of the conspiracy, the two men retained Robodial.org. LLC, a Pennsylvania company that provides telephone broadcasting services, to send out the pre-recorded message to a specified list of telephone numbers, prosecutors say.

“Hello. I’m calling to let everyone know that Gov. O’Malley and President Obama have been successful,” the message stated. “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.”

According to the prosecution, the automated calls were made to 112,544 registered Democrats in Baltimore and Prince George’s County before the polls closed on Nov. 2, 2010.

On Monday, Henson’s lawyer told Brown that the controversial telephone message was “political speech” in the heat of a campaign.

“Political speech is fundamental to the center of this democracy,” said Smith, a Baltimore solo practitioner. “The fullest protection in the republic is the right to political speech.”

McDonough, the deputy state prosecutor, countered that Maryland’s election law is intended to achieve the state’s “compelling interest” in protecting Marylanders’ right to vote against efforts to suppress that right through fraudulent statements.

Henson’s trial was originally slated to begin Nov. 15 — before Schurick’s — but was rescheduled for Feb. 6 after the assigned judge, Charles J. Peters, recused himself because he had been appointed to the bench by O’Malley just the previous year.

Brown, the current judge, was appointed by O’Malley in December 2007.