The same Maryland law that led to the convictions of two Republican campaign operatives involved in a 2010 Election Day robocall effort to suppress voter turnout could be used against individuals who urge people to vote, election law professor Larry S. Gibson said Thursday.
The statute that snared Paul E. Schurick and Julius Henson does not distinguish between fraudulent statements intended to suppress and those aimed at expanding voter turnout, Gibson added. Both activities are illegal under the law he called “a threat to democracy.”
For example, criminal charges can be brought against get-out-the-vote advocates if a prosecutor believes they intentionally misrepresented the opposing candidate’s positions or life story, said Gibson, who teaches at the Francis King Carey School of Law at the University of Maryland, Baltimore.
“This law is a danger to voter registration efforts,” Gibson said at a news conference. “The statute goes both ways.”
Gibson is no stranger to voter-registration drives, having led such efforts in Baltimore since 1968. During one of those drives in 2004, Gibson wore a T-shirt that stated “Vote or Die.”
That admonition could be interpreted as an attempt “to influence a voter’s decision whether to go to the polls to cast a vote through the use of fraud,” which would violate the state law, he said.
“It is best to keep criminal law and prosecutors out of political discourse,” Gibson said, citing the First Amendment right to free speech. “We should not be criminalizing statements in the political context.”
Gibson called the news conference to express his opposition to the statute — Election Law, Section 16-201 — a day after Baltimore City Circuit Court Judge Emanuel Brown sentenced Henson, a political consultant, to 60 days in jail, three years’ probation and 300 hours of community service for having conspired with Schurick to omit from their controversial robocalls an “authority line,” a statement telling voters that Robert L. Ehrlich Jr.’s campaign was the source of the call.
Schurick served as campaign manager for Ehrlich, a former governor who tried unsuccessfully to unseat the incumbent, Democrat Martin O’Malley, in 2010. Henson was a paid political consultant to the campaign.
Baltimore City Circuit Court Judge Lawrence Fletcher-Hill sentenced Schurick in February to 30 days’ home detention and 500 hours of community service after he was convicted of “attempting to influence a voter’s decision whether to go to the polls to cast a vote through the use of fraud,” of sending robocalls without an “authority line” and of conspiring with Henson to accomplish both goals.
Gibson assailed as “unacceptable” the disparity in the punishments given Henson and Schurick.
“The man convicted of the least amount of charges was given the more severe sentence,” Gibson said. “The injustice was compounded by refusing Mr. Henson bail pending appeal and ordering his immediate incarceration.”
The robocalls were made to 112,544 Democratic voters in Baltimore and Prince George’s County in the waning hours of Election Day 2010, according to the prosecution.
State Prosecutor Emmet C. Davitt, Maryland’s chief election-law enforcer, said the robocalls were clearly — and fraudulently — intended to make Democratic voters believe their votes were not needed.
Schurick and Henson have a “right to participate in the robust political arena,” Gibson said. “I think you have a constitutional right … to urge people not to vote.”