A little-noticed trial in Maryland could affect how many dirty tricks voters will see in the upcoming elections — things like anonymous fliers or phone calls telling people to vote on the wrong day, or in the wrong precinct, or that they can't vote at all if they have an outstanding parking ticket.
The tactics are often illegal, but it's rare for anyone to get caught, let alone end up in court.
The case in Maryland involves the 2010 rematch between former Republican Gov. Bob Ehrlich and incumbent Democrat Martin O'Malley. On Election Day, the Ehrlich campaign knew that things weren't going well. It was losing African-American voters in droves.
At around 3 p.m., Ehrlich's political director, Bernie Marczyk, sent campaign manager Paul Schurick an email asking, "What does Julius need to make the city turnout stay low?"
Julius Henson was a consultant hired to help the campaign with the black vote. The city was Baltimore, where many of the state's black voters live.
Two hours later, Schurick gave Henson the go-ahead to start making robocalls to about 110,000 registered Democrats in and around Baltimore. An unidentified female caller essentially said the election was over.
"I'm calling to let everyone know that Gov. O'Malley and President Obama have been successful. Our goals have been met," the caller said in the message. "Relax, everything is fine, the only thing left is to watch it on TV tonight."
In other words, don't bother voting.
A Difficult Charge To Prosecute
Schurick faces four criminal counts for, among other things, allegedly using fraud to discourage voters from going to the polls. A jury is expected to decide the case this week. Henson also faces charges for the phone calls, but his trial has been postponed until February.
Schurick says he never saw the political director's email and that he approved the robocalls because the consultant told him they were counterintuitive — that they'd encourage Democrats thinking about supporting Ehrlich to hurry up and vote.
Prosecutors say that defies common sense and the calls were clearly an effort to suppress the African-American vote. But according to Rick Hasen, an election expert at the University of California Irvine School of Law, the First Amendment gives a wide space for political speech, making such cases difficult to prosecute.
"There's all kinds of misleading stuff that goes on in campaigns and we don't want to criminalize people from engaging in sharp language and even potentially deceptive language that could, in fact, be constitutionally protected speech," says Hasen.
And he says it's a difficult line to draw. Indeed, Schurick's attorneys are already laying the groundwork for an appeal on constitutional grounds, if need be. Hasen notes that state laws also vary greatly on the use of deceptive campaign practices, and there's no federal statute against them — despite efforts by then-Sen. Barack Obama a few years ago to get one passed.
A Strong Message
Still, Gilda Daniels, a former Justice Department official, thinks the Maryland case sends a strong message that such tactics are increasingly frowned upon.
"Even if [Schurick is] not found guilty, I think the fact that there has actually been a case brought of this type is a victory. If he's convicted, then it certainly highlights it even more," Daniels says.
Former Republican operative Allen Raymond agrees, but he says people can do some crazy things in the fog of a campaign.
"Sometimes when people want to win, something sounds like a great idea at 11 o'clock at night at campaign headquarters, but in the light of day isn't such a great idea," Raymond says.
And he should know. Raymond went to prison for his role in jamming Democratic Party phone lines in the 2002 New Hampshire Senate race. Raymond says the real question is why the Ehrlich campaign would even bother, since there's little evidence deceptive tactics work.
"He wasn't going to win that race. ... It was a done deal, [it was] over," Raymond says. "How many people did they think who received this phone call were actually going to stay home?"
And indeed, one Democratic recipient testified that he was so angry when he got the call — and saw it as a trick to discourage him from voting — that he immediately went out to vote.