By Geoff Tucker
When it comes to voter protection, California has a unique law in place: California Election Code § 18543(a) provides that, without probable cause, it is a felony to attempt to prevent people from voting by insinuating that they are ineligible to vote. While this type of law has also been considered by Ohio, California remains the only state with this type of voter protection. The question, however, is whether such a law is necessary or practically useful.
On it’s face, it would seem so. The statute would clearly apply in a situation where an activist group, seeking to discourage minority voters, went to a polling place and tried to persuade would-be voters that they are ineligible to vote and may be committing voter fraud by doing so. However, looking at the number of actual prosecutions brought under this law, this situation is far from a common occurrence.
Only one reported case actually discusses this law: United States v. Tan Duc Nguyen. In that case, the defendant, a Republican candidate challenging Democrat incumbent Loretta Sanchez, sent letters to thousands of residents who 1) had Hispanic surnames, 2) were born outside of the United States, and 3) registered as a Democrat or had no party affiliation. These letters, written in Spanish, warned recipients that it was a federal crime for illegal immigrants to vote and that voting in the United States, unlike in Mexico, is not compulsory. As a result, investigators secured a warrant to search the defendant’s home and campaign headquarters, which he appealed on the grounds that there was insufficient evidence to show that he committed any crime. Applying § 18543(a), the Ninth Circuit held that, while there was sufficient evidence for a warrant under a different election law statute (§ 18540) relating to voter intimidation, the defendant did not violate this specific section as he never “fraudulently advise[d]” potential voters; he merely made an accurate statement of law. Ultimately, the court upheld the warrant because there was sufficient evidence that the defendant specifically targeted non-native Democrats, coercing them not to vote (in violation of § 18540).
As a result, it appears that this statute is ultimately quite narrow; so long as one’s assertions are technically correct, it appears that § 18543 is not violated. Indeed, considering that this law has been applied in court only one time, and even then did not apply, one must ask whether this law is actually necessary. While it is undoubtedly beneficial to prohibit fraudulent accusations that someone is ineligible to vote, the fact that no other states have such a law indicates that this situation is rare, if not almost nonexistent; otherwise, it seems that at least a few other states would adopt such a law.
Additionally, this law does not prohibit other forms of voter intimidation, which the Nguyen case may actually be interpreted to support. For example, in 2012, Ohio Democrats were outraged when a private group rented billboard space with a message saying, “Voter Fraud is a Felony. Up to 3 ½ [years] & $10,000,” paired with images of a large wooden gavel or a group of people in jail. These billboards were strategically placed, appearing in predominately Black and Latino communities. Unlike Nguyen, this message wasn’t sent out to specific people, but rather displayed to the public at large. More importantly, the message is factually true. If such a billboard were to appear in California, they would not implicate § 18543, or potentially any other statute, despite the fact that these ads appear to be aimed to coerce people not to vote, especially those who may be unsure of their voter eligibility. Indeed, those may be the people that § 18543 was aimed to protect, as they would logically be the most likely people not to vote when someone baselessly questions their eligibility.
While this law does prevent such groundless accusations, it seems to be a remedy to a specific problem that occurs only rarely. A bigger issue, as briefly discussed in Nguyen, is that activist groups can circumvent this law by finding ways to publicly state the consequences of voter fraud. As a result, people who are eligible to vote may find themselves doubting their status and ultimately refraining from going to the polls. Thus, the same result may be achieved as would have resulted from direct accusations of ineligibility. While this post will not address the issue of such public displays as the billboards in Ohio, or the possible First Amendment issues, the limitations of statutes like § 18543 seem apparent.