Democrats in the Michigan state Senate are pushing a last-minute measure to ban election speech deemed false.

SB 707 would outlaw “intentionally and knowingly” making a “false statement or misrepresentation” about elections, fining anyone who violates the law $1,000. An employer of the accused “for an election-related purpose” would face $10,000 in fines. 

The bill passed from the majority-Democrat Elections and Ethics Committee on Nov. 13 on “a party-line vote,” said Republican state Sen. Ruth Johnson in a statement to The Federalist. State Sen. Ed McBroom and Johnson were the two Republicans on the committee, and they voted to “pass,” a third option that is not yes or no.

“The two Republican members passed hoping to get more clarity on the standards that would be used to prove that something is done ‘intentionally and knowingly with intent,’” Johnson said. 

According to Johnson, the measure could potentially head to the state Senate for a vote next month before the end of the session, after which Republicans will take control of the state House. McBroom told The Federalist that if Democrats bring the bill to the floor in each house, he thinks it will pass. 

Controlling Election Speech

Nine Democrat state senators sponsored the bill: Dayna Polehanki, Erika Geiss, Mallory McMorrow, Mary Cavanagh, Rosemary Bayer, Sean McCann, Stephanie Chang, Sue Shink, and Veronica Klinefelt. 

The legislation amends current election law to punish with a $1,000 fine “an individual who intentionally and knowingly makes a false statement or misrepresentation to another individual” about elections. It would regulate speech regarding “time, place, or manner of elections”; “voter qualifications or restrictions”; “criminal penalties associated with voting”; and “an individual’s voter registration status or eligibility.”

The bill says these charges apply if the accused “knows the statement or misrepresentation is false” and intends to “impede or prevent another individual” from voting.

If a group employs the accused for an “election-related” purpose, it would also be fined up to $10,000 unless it can prove it did not know the employee would “make a false statement or misrepresentation.” 

Johnson said she thinks “the intent is good” but that “the devil is in the details.”

“People should not be intentionally giving out bad information to try to prevent anyone who is eligible from voting,” she said. “What I don’t want is for this to be misused as a political weapon against people who say something that is incorrect — and that they may even believe to be true.”

Johnson said she is mainly concerned with whether a false statement is made “‘intentionally and knowingly.’”

“I don’t want to see someone being prosecuted because they shared or repeated information they maybe didn’t even realize was inaccurate,” she said. 

McBroom echoed similar concerns, saying he is concerned about the criteria for judging the intent behind a false statement.

“It’s based on intent, but it’s not exactly clear as to what standard that intent will be judged,” he said. “If there is a parody situation, a comedy situation, or something like that that’s misunderstood, how do we protect the person using their First Amendment rights from being convicted of a crime that they never intended to do?”

He said the current standard is by a “preponderance of evidence,” or that the evidence makes something more likely to be true than not. McBroom hopes to raise the standard to require “clear and convincing” evidence, requiring the prosecutor “to prove that this person genuinely intended to mislead people and impede them from voting.”

McBroom said he will likely vote against the bill unless Democrats work with him to raise the standard. 

“I’m hoping they’ll accept my concerns and amend the bill to recognize those, but I suspect they probably have the votes whether they take on my concerns or not,” he said. “I want to make sure that we’re protecting people from being convicted of a crime that they never meant to commit.”

Last-Ditch Measures

Democrats currently control both the state Senate and state House. But since Republicans won back the state House earlier this month, Democrats are in a “lame duck” session during their final weeks controlling the entire state legislature.

Johnson said Democrats will likely push the measure during “lame duck” period and that it “would have a good chance of passing the Democratic-controlled legislature.”

“It’s really important to clarify the language in the bill and make sure it’s not impeding peoples’ 1st Amendment rights,” she said. 

As The Federalist has reported, Michigan Democrats have been trying to push bills that would have Michigan join the National Popular Vote Compact and carve out special protections for “gender identity” and “sexual orientation” in their final weeks of power.

Michigan has seen a recent rise in threats toward free speech. As The Federalist reported, Secretary of State Jocelyn Benson has been encouraging residents to report their neighbors to a government email address for election speech deemed “misinformation.” Michigan Attorney General Dana Nessel also threatened to prosecute a resident, who went on record for the first time with The Federalist, for making Facebook posts Nessel considered “misleading.”