Misinformation provision in elections bill expected to face legal challenge

A bill making it a misdemeanor to knowingly spread false information with the intent to impede or prevent people from voting is likely to face a legal challenge if it becomes law.

The provision is part of a large elections bill, the Democracy for the People Act, (HF3/SF3), moving through the Legislature to strengthen and protect voting rights. The bill enacts automatic voter registration; allows 16- and 17-year-olds to pre-register to vote and protects voters, election officials and volunteers from intimidation and harassment.

But the provision that James V. F. Dickey has in his sights would make it a gross misdemeanor — punishable by up to a year in jail and a $3,000 fine — to intentionally spread false information within 60 days of an election about the “time, place or manner of holding an election,” restrictions on voter eligibility and threats to physical safety associated with voting.

Dirty tactics — like telling people to vote on the wrong day — have long been employed to suppress voting, usually in Black neighborhoods.

“I can almost guarantee that there will be a challenge to it,” said Dickey, senior trial and appellate counsel at the Upper Midwest Law Center, a conservative public interest law firm. “There’s been a lot of talk about why it’s not a good idea from a constitutional perspective.”

Rep. Emma Greenman, DFL-Minneapolis, a national voting rights attorney and chief author of the bill, said the provision would protect voters from intimidation, harassment and anything that would hinder them from voting.

“I’m not surprised that a law firm affiliated with right-wing causes and activists like Doug Wardlow is already threatening to challenge a law seeking to limit bad faith actors from interfering in our elections and with Minnesotans’ freedom to vote,” she said.

Now that the state is restoring voting rights for over 50,000 people on parole or probation — another law Dickey expects to be challenged — Greenman anticipates misinformation that might say, “You’re a felon and you can’t vote.”

Dickey said the law “sweeps in speech” by people who didn’t intend to deter voting, and then they could get sued by the attorney general and be forced to “go to court to explain what their intentions, motivations were.” 

He was on a team that won a case challenging a provision of the Minnesota Fair Campaign Practices Act that limited the ability to speak against school funding ballot initiatives. In 281 Care Committee v. Arneson, the Eighth Circuit Court of Appeals struck down the portion of the law making it a crime, with civil penalties, to make false statements about the effect of a ballot initiative.

“The Eighth, in that situation, really ripped it apart,” he said. “There’s a chilling effect any time you are forced to lawyer up to defend yourself or your speech.”

Secretary of State Steve Simon supports the bill, and has said he thinks it has enough safeguards to protect First Amendment rights. The person would have to have the intent to impede someone from voting, which is a high bar, he said.

Dickey said while he understands the desire to address misinformation around elections, the solution isn’t to pass a law that will force people to hire a lawyer to defend speech. Instead, misinformation should be combated with “counter-speech.” In other words, “call them out for the liars they are,” he said.

“I believe Minnesotans are smart enough to figure out when they’re being lied to,” Dickey said.

House Minority Whip, Rep. Jim Nash, R-Waconia, said during the bill’s stop at the Ways and Means Committee on Monday that it’s a “widely expansive bill.”

“This is going to be challenged in court within 12 seconds of being signed into law,” he said.

Greenman replied that during its six House committee stops, lawmakers have had good conversations about the bill, and the importance of ensuring the state is protecting voters and election administrators.

“I’m really looking forward to bringing this bill to the floor and to having an important conversation about how we’re ensuring that Minnesotans — not special interests, not corporations — are the ones at the center of our elections,” she said.