Earlier, I discussed the illogical yet widespread claims (found on Huffington Post, Daily Kos, and elsewhere) that billboards noting “Voter Fraud Is a Felony” were illegal voter intimidation or suppression, and explained why those billboards were constitutionally protected speech. (Putting aside the legalities, why would anyone even object to “suppressing” a fraudulent, illegal vote, such as a repeat voter who dilutes the votes of valid voters, or someone who steals their identity?)
In response, a reader exulted in the fact that the billboard company, Clear Channel, took down the billboards under political pressure, writing that the billboards were “malicious messages” and defending the billboards’ removal by saying “that only market forces” were “brought to bear. Now, everyone knows that voting is a right, not a crime!” But illegal voting can be a crime, such as the fraudulent votes cast by former Maryland Democratic Congressional candidate Wendy Rosen. (She withdrew her candidacy after it was discovered that she had illegally voted in both Maryland and Florida). And the billboards were removed under pressure from government officials, like Cleveland City Councilwoman Phyllis Cleveland. The wife of U.S. Senator Sherrod Brown (D-Ohio), who also pressured the company to take down the billboards, has claimed that “Voter fraud is a myth” in Ohio, “just as it is everywhere else in the country.” This claim on her part was obviously false. But such claims are often made by people who know better. As a former Justice Department lawyer noted,
While Maryland Congressman Elijah Cummings (D) tells us there is no vote fraud, fellow Maryland congressional candidate Wendy Rosen is committing federal felonies by voting both in Maryland and Florida. While the NAACP is leading the charge against photo voter identification, Lessadolla Sowers from the NAACP heads off to prison for voting for dead voters. While Brian Moran, Virginia’s Democrat[ic Party] Chair, rails against voter integrity, his nephew Pat is caught on camera plotting the use of forged documents at the polls to help President Obama.
It’s just false to claim that “only market forces” were “brought to bear” on Clear Channel: Pressure from government officials like a city council is not about “market forces,” but about violating the First Amendment. Some courts have made this clear. For example, a federal appeals court revived a First Amendment lawsuit over a village official’s letter to the Chamber of Commerce criticizing it for publishing a businessman’s ad critical of village policies in the Chamber’s publication, since the letter involved governmental pressure. See Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991). Similarly, that court ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’ and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003).
Voter fraud is not harmless, but rather is dangerous to democracy. It can affect not only elections, but also important legislation, by providing the deciding vote in a legislative body for its passage. A recent book by a journalist and a former Justice Department lawyer provides such examples, including a Senate race that provided the deciding vote for the passage of Obamacare, which passed the Senate with not a vote to spare. (See Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk.) Moreover, “vote suppression” comes not from billboards correctly stating that “voter fraud is a felony,” but from physical interference with voters’ ability to vote, like the harassment of Florida voters by left-wing union thugs in 2004; or government impediments, such as the Obama Administration’s disturbing failure to protect overseas military voters’ right to vote in this election cycle and in 2009.