Every year, Colorado sees about 400 bills passed into law. No such luck for one Denver lawmaker who saw her effort to impose stiff penalties of election-related deceit fail this month. The reason: state law already criminalizes such behavior. Unfortunately, the defeat came only after legislators were forced to waste precious time on deeply politicized and heated debates.
Sen. Irene Aguilar, a Denver Democrat, was the lead sponsor of Senate Bill 147. The measure sought to impose felony sanctions for spreading lies about election procedures or voter eligibility. Spreading such false information is already illegal under current state law and also penalized under existing civil libel and slander statutes. Ultimately, this legislation was a solution largely in search of a problem, or to put it more crassly, an opportunity for bill sponsors to get opponents on the record as opposing “election integrity” protections.
As The Denver Post editorialized about the bill’s defeat, “reckless false political campaign speech” is already a misdemeanor. While the new legislation would have raised the bar to felony status, the heightened penalties would have only further discouraged already wary prosecutors from enforcing speech-related statutes.
In 2006, El Paso County District Attorney John R. Newsome declined to press charges against a political committee after its members conceded they’d “inadvertently” aired a commercial that contained an inaccurate statement about a candidate. Newsome concluded that proving “willful” deceit, as is required under Colorado law, would simply be too difficult.
Also that year, Denver District Attorney Mitch Morrisey stood his ground for not investigating allegations of misuse of funds by another political group, saying his office was not in the business of being “speech police.”
Politics is an ugly sport. Most of the time, determining the truthfulness of political attacks is difficult. And that’s before you get to political satire, where an attempt at humor can unintentionally deceive those with less than average acumen.
Even law-and-order enforcer Attorney General John Suthers condemned Aguilar’s proposal, explaining to lawmakers that the bill’s mandate that lies be “intentionally misleading” would cause significant barriers to successful convictions. Imagine a merely competent defense attorney salivating, “your Honor my client didn't INTEND to mislead.”
So what was Aguilar’s motivation here? While she proclaims that “voter suppression is a serious issue in this country,” her proposed changes wouldn’t have done anything to deter deceitful efforts to influence voter behavior. She referenced an anonymous culprit’s use of automated phone messages to elderly voters just before the 2008 election informing them that their precincts and voting locations had changed. The culprit wasn’t caught under the old law and presumably wouldn’t be caught under her proposed changes.
Instead, her bill would have required that the attorney general prepare a post-election report about alleged violations, including “the racial or ethnic composition … or minority group membership of the persons toward whom the alleged violation was directed.”
With a multitude of non-profit coalitions, including ours, now dedicating substantial time and resources to exposing diverse threats to fair elections, Aguilar’s new mandate would have only created more paperwork for law enforcement officials already strained for time.
The big question now: how will opponents of those who had the courage to vote against the bill now characterize a “no” vote? We can only imagine that it will be falsely characterized as a vote against fair elections. Would Aguilar then call for felony prosecution of anyone involved with spreading such a lie? We imagine not.