Relax, Stay Home: Election Fraud Goes Unenforced

 
Take a moment and imagine the following.  It is Election Day 2010 in your state of Maryland, and on your way home you plan to stop by your assigned polling place to exercise your right to vote.  Two hours before the polls close, though, you receive a robocall telling you to “relax” and that there was no need to vote because Governor Martin O’Malley has won re-election.  If you think this sounds like an underhanded method to discourage you from voting, then you would be right and it is precisely what happened last year in Prince George’s and Baltimore County, Maryland.

 The origin of the call stems from a conspiracy between Paul Schurick, a former senior aide to former-Governor Robert Ehrlich (R), and campaign consultant Julius Henson.  The conspiracy was simple – use the robocall in the final hours of Election Day to discourage people from heavily Democratic and minority counties from casting ballots.  Mr. Henson had an employee, Rhonda Russell, of his Democratic political consulting firm, Universal Elections, record and purchase the robocall through robodial.org, which does business exclusively with Democrats.  Mr. Henson made thousands of dollars in consulting fees from the Ehrlich campaign.

In addition to telling people that O’Malley had won, the call stated: “the only thing left is to watch TV tonight.”  Mr. O’Malley won re-election in 2010 by over 250,000 votes, but there is no doubt that the information in the call, expressed as the truth, was a blatant lie.  Under Maryland law, using fraudulent information knowingly or intentionally for the purpose of discouraging voting is a crime.  Additionally, disclosure rules require an “authority line” describing the source of the call, which was omitted.

Last year Mr. Schurick was convicted on four separate counts of election fraud for his involvement in this scheme.  Last week, though, Mr. Henson was acquitted of three out of four charges of election fraud, and is appealing his conviction for failure to include the “authority line” in the robocall.  Somehow the jury accepted the defense’s bizarre argument that the call was designed to be a “counterintuitive” method to encourage Republicans to vote, even though it was intended only to be sent only to Democrats.  Mr. Henson claimed his actions were acceptable because “this is what we do in politics each and every day.”  More troubling was the spectacle of Mr. Henson’s trial, which the Baltimore Sun reported included injections of race and classism.  Mr. Henson’s defense attorneys in closing arguments compared the prosecution in the case to the Fugitive Slave Act (Mr. Henson is African-American), and said that the prosecution wanted to convict because Mr. Henson had made lots of money during the campaign.

For their role, members of robodial.org have said that they were caught off guard by the call.  Ms. Russell had done business with the company in the past and robodial.org trusted this was for a Democratic candidate.  That sense of trust was violated and expressed by robodial.org’s owner Mark Hampton.  “I think these calls were just what people say they are,” Hampton said.  “Why would anybody send a call, you know, telling people to relax, everything’s okay. Nobody pays for a call like that.  There’s only one reason somebody sends a call like that and that’s to get people to stay home.”

The mockery of the right to vote represented by this case is simply deplorable.  The fact that this conspiracy was so clear and targeted in its intentions, yet one of the co-conspirators goes basically unpunished does not bode well for the right to vote.  Political campaigns attempt to appeal to your values and aspirations.  The negativity we are accustomed to watching can be overcome with leadership and candidates willing to live up to the right values and goals.  An unabashed assault on basic truth – like claiming an election is over before polls close – undermines the basic process of openly selecting our representatives.  That is several levels above a dirty political trick.

It is easy to envision future political operatives using bolder and smarter tactics that could actually sway the outcome of a close election.  It is likely impossible to have a redo of an election where one cannot ever know how much such a tactic affected the outcome.  That is why the law is prepared to punish a person with jail time for these behaviors.  The larger symbolic value this case represents is a reminder that political power is seductive to a point that people are prepared to make really stupid choices.  In the heat of passion to win an election, it is easy and not at all surprising that someone may act irrationally.  Let us hope that political candidates are not irrational themselves and exercise better judgment in who they hire.

Joe Hernandez

Blogger, Criminal Law Brief

Image by Donald J. Bergquist