Barry Rascovar: State’s ruling elite overlooks free speech -- Gazette.Net







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Another threat to Democratic supremacy in Maryland has been extinguished with the harsh punishment meted out to shadowy campaign consultant Julius Henson, who used a deceptive robo-call message to discourage black Democrats from voting in 2010.

The taped message failed to include an authority line from the Ehrlich gubernatorial campaign. For this grievous sin, Henson was immediately jailed by a judge — even before appeals were heard — ordered to perform 300 hours of community service, placed on three years’ probation and barred from pursuing his career during that time.

All this punishment for a “crime” that happens occasionally in campaigns and almost never warrants more than a fine.

Henson made two big mistakes: 1) He remained defiant before Baltimore Circuit Judge Emanuel Brown, and 2) he angered the Democratic establishment by working for Republican Bob Ehrlich.

He wasn’t the only one punished for aggressively campaigning for Ehrlich. Paul Schurick, the ex-governor’s campaign manager, was prosecuted, too, for his role in this mendacity.

It’s a shameful outcome. You can point a finger at Democratic officials, who loudly demanded a witch hunt; the state prosecutor, for once again turning a molehill into a mountain of evil-doing; and the judge, for treating this minor offense like a major crime.

Even worse, the law used to convict Henson and Schurick could be thrown out in federal court for violating the Constitution. The statute makes it illegal to “influence or attempt to influence a voter’s decision whether to go to the polls to cast a vote through the use of … fraud.”

The “fraud” in this case was a taped phone message to African Americans (and some whites) suggesting they need not bother voting because Martin O’Malley had already won the election.

That message stretched the truth, but not by much: O’Malley was a few hours away from a landslide victory over Ehrlich.

This is the “voter suppression” effort, the “fraud” that warranted tarring Schurick and Henson as criminals.

Henson is no angel. Candidates hire him when they want to play hardball in a campaign. Ehrlich needed to find a way to offset lopsided African American support for his opponent. He turned to Henson.

In the past, Henson worked for Democrats — and never was prosecuted. When he switched sides, he became a marked man.

What Henson and Schurick did may have been stupid, clumsy and ill-considered. But was it criminal?

University of Maryland law professor Larry Gibson, a seasoned veteran of rough-and-tumble political campaigns for 44 years, points out that this daffy law also allows prosecution of overzealous “get-out-the-vote” organizers who distort an opponent’s record. That’s “fraud,” too, under the statute.

Defending this law in federal court could prove Mission Impossible.

Since when is it a crime to suggest that voters stay home? Isn’t not voting a legitimate choice, an accepted way of expressing voter sentiment?

That’s one argument lawyers for Henson and Schurick might use. For support, they can point to the most important recent Supreme Court ruling on campaign behavior — the Citizens United case, in which the high court gave corporate entities virtually unfettered free-speech rights.

In that decision, the Supreme Court majority wrote that “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”

If a law such as Maryland’s “interferes with the ‘open marketplace of ideas,’” it runs afoul of the First Amendment. Government may not “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.”

In other words, it’s not up to Democratic legislators to pass laws that restrict voters’ rights to figure out for themselves which candidate’s campaign is telling the truth.

“It is inherent in the nature of the political process,” the court wrote, “that voters must be free to obtain information from diverse sources in order to determine how to cast their votes.” That might even include phone calls urging people not to vote because the election is essentially over.

While this basic free-speech premise eluded Maryland’s ruling elite — legislators, prosecutors and judges — it was crystal clear to the jury foreman in Henson’s trial.

After the verdict, foreman Renee Johnson explained why the jury found Henson not guilty on the three most serious charges and guilty of only a minor offense.

Henson didn’t force voters to believe the robo-call message, she said. Besides, his tactics were hardly new in a political campaign:

“We, as a people, because we live in a democratic society, we have the choice of believing or not to believe. [If you] choose to believe, it’s on you.”

Giving voters the unfettered right to decide for themselves what to do on Election Day is the bedrock of democracy — even in a one-party state like Maryland.

**** Oops. Last week, I mistakenly made prospective gubernatorial candidate Larry Hogan Jr. a resident of Frederick County. In fact, Hogan lives and works in Annapolis. I must have been thinking of his father, the former congressman of the same name, who moved his family to Frederick County after concluding his political career.

Barry Rascovar is a state political columnist and a communications consultant. He can be reached at