Sue Lani Madsen: Irony abounds in election integrity debate

When drafting Washington state legislation making it a misdemeanor to knowingly repeat a lie, it would seem especially important to avoid making misleading statements. And yet Senate Bill 5843 was introduced at a news conference with misinformation.

Before diving into a spicy dish of political irony, let’s establish common ground. Impugning motives is off limits in the Legislature. Republicans are not knowingly opponents of voter access and Democrats are not reckless opponents of voter integrity. Everyone in the Legislature is there intending to do good.

But the road to hell has been paved with good intentions for millennia. It’s the outcomes that matter.

Two bills passed out of the Washington Senate’s State Government and Elections Committee take very different approaches to protecting democracy and our elections in the state. SB 5843 seeks to restrict political speech. SB 5650 reminds voters there are consequences to voting illegally.

SB 5843 would make it a gross misdemeanor for a candidate or elected official to “knowingly make false statements regarding the election process or results” with an intent “to deceive the public regarding the election process or result of an election” and which “interfered with a voters ability to cast their ballot, intimidated a voter, or deterred a voter from voting freely.”

Gov. Jay Inslee introduced SB 5843 at a Jan. 27 news conference with assurances the bill does not violate First Amendment rights to free speech, because his staff had consulted experts in constitutional law. “We do not say you are free to lie on your taxes,” said the governor in his prepared remarks. And how did he say we’d decide it’s a lie? “We do it the American way, which is a jury system. Today, if you are accused of knowingly lying on your taxes, you are judged by a jury and that is the same constitutional guarantee we would provide for those people who may have knowingly lied about an election result … and it would be up to the prosecution to show that you knew that.”

The IRS is not in the habit of conducting jury trials to decide if taxpayers are knowingly lying. According to Eve Weisenburger, CPA and experienced tax preparer, “the IRS auditor is the one who decides whether you’re lying or not. It’s on a one-on-one basis. It’s not like you’re in court.

“They’re the one who decides if it was purposeful, and based on your sincerity you either have a negligence penalty or you don’t. If the taxpayer and/or the tax professional disagree with the auditor, they have the right to appeals.”

It’s a long road before you get to a jury. An elected prosecutor would make the call on whether there was a violation of the proposed statute to even start the process. Either Inslee was knowingly lying, or he should have prepared better before misfiring a metaphor at a news conference.

While lawsuits are working their way through the courts, there will be many opinions, and calling an opinion a lie is premature. No one should fear voicing an opinion on an election. A democracy requires citizens to take responsibility for sorting out the facts, and with confidence all legal votes will be properly counted. As Inslee said in his testimony before the committee last week, “we have to have confidence to have a functioning democracy.”

Sen. Jeff Wilson, R-Longview, ranking Republican on the committee, proposes to rebuild voter confidence with SB 5650, requiring a reminder in every voter’s pamphlet on the importance of election integrity and our responsibilities as voters. “Elections should always be a bipartisan discussion,” he said. “Let’s make our elections as secure and safe as they possibly can be.” Adding a warning label to the voter’s pamphlet is a simple, almost no-cost reminder to brand new and seasoned voters alike.

Wilson testified against SB 5843 for “one reason and only one reason – the First Amendment. We need to take the time to listen and learn what people are saying.” You can’t hear what people are saying if you stifle speech.

Committee Chairman Sen. Sam Hunt, D-Olympia, cited Justice Oliver Wendell Holmes Jr.’s famous phrase to defend SB 5843. But while shouting fire in a crowded theater is a bad idea, it is not a justification for abandoning the First Amendment, according to some constitutional scholars.

“The phrase originated in a case that did not involve yelling or fires or crowds or theaters,” according to an analysis by Jeff Kosseff in an Atlantic article titled “America’s Favorite Flimsy Pretext for Limiting Free Speech.” Kosseff points out Holmes changed course in a later case in Abrams v. United States, saying “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

As always, the cure for bad speech is better speech.

Contact Sue Lani Madsen at rulingpen@gmail.com.