Minnesota law on voting misinformation survives legal challenge

A test case on a new Minnesota law meant to stop — or at least slow — false claims that prevent people from voting didn’t completely resolve the legal issues. It did, however, find that the law passed earlier this year isn’t unconstitutional and will be in force for the final month of the election.

In Minnesota Voters Alliance v. Ellison, federal District Court Judge Nancy Brasel upheld the law that prohibits speech that “intends to impede or prevent another person from exercising the right to vote;” and that the speaker “knows to be materially false.”

But in doing so, Brasel also found that the speech the Voters Alliance thought would get the organization in trouble under the law probably wouldn’t be covered.

So where does all that leave the law heading into the election? About where it was before the lawsuit — open to interpretation and mostly untested. Secretary of State Steve Simon said last month that he didn’t think the misinformation law was as sweeping as the Voters Alliance argued it was.

“It is not an opinion, it is matters of fact that are spread with some intent, spreading them knowing they are false,” Simon said. “If someone inadvertently passes along a rumor that they truly believe to be true, that a neighbor told them and they passed it along, it’s not meant for that.

“It’s meant for the knowing dissemination of false information that is material to voting,” Simon said, adding that while he gets those type of reports sometimes but not on a large scale.

The law followed reports of robocalls telling voters their precincts had moved or a candidate had dropped out of the race or giving the wrong date for the election. There were also AI-enhanced calls to some New Hampshire voters using President Joe Biden’s voice to ask voters to skip that state’s primary. 

Attorney General Keith Ellison, whose office defended against the suit, has posted a new webpage about election intimidation and misinformation, including that “no one may deceive you about your right to vote” and that people who are no longer incarcerated may vote.

“I do not anticipate needing to enforce these laws, but I will not hesitate to do so in order to keep our elections free from force, threats, or disinformation weaponized to keep Minnesotans from the ballot box,” Ellison stated.

He has also produced a form for residents to file complaints about any potential violations of election law. 

The Voters Alliance lawsuit started with another suit. After the Minnesota Legislature adopted a law to restore voting rights to convicted people once released from incarceration — rather than once they clear probation or parole — the Upper Midwest Law Center, on behalf of the Voters Alliance, filed a challenge in state court. The conservative legal center argued last summer that while the Legislature can decide when convicted people are “restored to civil rights,” it can’t pick and choose which rights are regained and which are not. For instance, out-of-state travel restrictions during probation are still allowed, while voting restrictions are not.

Doug Seaton, an attorney and founder and president of the Law Center, said it agreed to file the case when no one else appeared to be challenging the new law.

“The fundamental issue in the case is whether the Legislature can in fact pick and choose which civil rights it wants to bestow on those who are still serving their sentences,” Seaton said when the suit was filed. “We don’t think they can.” The clear path to doing what House File 28 did is a constitutional amendment, Seaton said.

An Anoka County judge disagreed and upheld the so-called felon vote law, voter registration proceeded, and people who couldn’t vote under the previous law began voting last year and will be eligible this election as well.

The Voters Alliance appealed to the state Supreme Court, which had already previously stated that it believed the Legislature had the legal authority to restore voting rights. But rather than ruling on the merits, as the district court had, the top court only said the people bringing the suit did not have standing to do so.

The Voters Alliance has said it intends to keep claiming publicly that the voter restoration law is unconstitutional. Could the organization be subject to prosecution for impeding someone from voting? Couldn’t such pronouncements stop someone who is still on probation from voting for fear of getting into legal trouble?

“As long as it is in force,” said Law Center senior counsel James Dickey of the election law amendment, “our clients and the rest of Minnesota continue to be subject to an unconstitutional gag order on hot-button political issues like the new unconstitutional Felon Voting Law.”

He said the center plans to appeal to the Eighth U.S. Circuit Court of Appeals.

But in her decision, Brasel wrote that she didn’t think saying that the felon vote restoration law is unconstitutional is covered by the new law, even though Anoka County Attorney Brad Johnson has asserted the Voter Alliance’s statements do violate the law.

“… MVA says and wishes to continue saying: ‘Felons still serving their sentences do not have a right to vote in Minnesota,’ ” Brasel wrote. The group claims to have a “good-faith belief” in the truthfulness of that statement, and the Supreme Court’s latest ruling didn’t get to that issue.

“This statement is not necessarily proscribed by (the new election law),” Brasel wrote, because the law requires a person “knows” their statements are materially false. The law also requires that the speech includes an intent to impede a voter from voting.

“MVA alleges no facts alleging that it has such an intent, so its speech is not proscribed by the Election Law for that reason as well,” the judge wrote.

But as to the law itself, Brasel wrote that the state “undoubtedly has a compelling interest in reducing misinformation aimed at preventing someone from voting. The law “prohibits knowingly false speech about where, when and whether someone can vote, with the intent to prevent someone from voting.”

She termed the law “narrowly tailored.”

“It does not reach political speech about the contents of the ballot, it merely reaches speech about where, when and who can vote,” Brasel wrote.

The Voters Alliance has filed other suits challenging election laws, including use of absentee ballots and a ban on wearing campaign-related apparel at polling places.

And it announced a new challenge last week to a different election-related law. In Kohls and Franson v. Ellison, the Upper Midwest Law Center asserts that the so-called “deep fakes” prohibition violates free-speech rights. The law bans AI-generated content with the intent to influence an election ”that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct” and is done without the permission of the person depicted.

The lawsuit says that the 2023 law does not have exceptions for parody and cited a video labeled as such that features an AI representation of Vice President Kamala Harris. Christopher Kohls posted the video on his political commentary site, and Rep. Mary Franson, R-Alexandria, tweeted it. 

Simon’s office has issued warnings about deep fakes and, because investigations of depictions can take time, he urged people to raise awareness of such postings quickly.

“If the content includes incorrect information about election administration, it is important to notify the public of accurate information,” the office stated. “The Office of the Minnesota Secretary of State can support local election offices in removing content that violates this law from circulation and correcting the public record on election information.”

Editor’s Note: Peter Callaghan wrote this story for MinnPost.com. Callaghan covers state government for MinnPost. 

This article first appeared on MinnPost and is republished here under a Creative Commons license.

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