By The Herald Editorial Board
It’s the expectation that lawmakers and public officials — as would any toolmaker — see a need or problem and look to craft a law that fixes what’s broken.
Here’s what’s broken: The feverish and unfounded belief that the 2020 presidential election was “stolen” from former President Donald Trump, that President Biden was not legitimately elected and that rampant election fraud was responsible, an allegation that — without reliable witnesses or evidence — has been weaponized to further a potential re-election bid by Trump in 2024 and the campaigns of others throughout the United States and — ultimately — to undermine free and fair elections and the country’s representative democracy.
The Washington Post reported last week that 163 Republicans, who have embraced Trump’s “Big Lie,” have declared they are running for office this year, including 69 candidates for governor in 30 states, 55 candidates for the U.S. Senate, 13 candidates for state attorney general and 18 running for secretary of state, all for posts with influence on the conduct and confidence in elections.
Not included in that count are three Washington state Republican legislators — state Reps. Robert Sutherland, R-Granite Falls; Vicki Kraft, R-Vancouver; and Brad Klippert, R-Kennewick — who spent a combined $4,361 in taxpayer funds last summer to attend MyPillow CEO and Big Lie acolyte Mike Lindell’s three-day “Cyber Symposium” in South Dakota, which promised “irrefutable” evidence the election was stolen, but in the end produced no such proof and even led experts invited to the symposium to call Lindell’s “hacked” data nonsensical. Kraft and Klippert have since announced runs for the U.S. House.
As well, that viral lie has led 58 percent of Republican voters to consider Biden’s win illegitimate and 34 percent of Americans to consider political violence acceptable in some circumstances, according to a Washington Post-University of Maryland poll.
As well, the Big Lie most certainly contributed to the violent, destructive and deadly Jan. 6 insurrection in Washington, D.C., where Trump supporters, egged on by the president and others, stormed the U.S. Capitol in a briefly successful effort to halt Congress’ count of electoral votes and the official recognition of Biden’s presidential election win.
The proposed solution: Gov. Jay Inslee wants to make trafficking in such lies about elections and their results by elected officials and candidates for office a gross misdemeanor, punishable by up to 364 days in jail and a $5,000 fine. Inslee announced the proposed legislation on Thursday, the one-year anniversary of both the Capitol insurrection and a copycat breach of the gates of the governor’s residence in Olympia.
“When people believe an election was stolen, what do you think will happen? Violence,” Inslee said in announcing the bill. “The threat to our democracy is just as dangerous on Jan. 6, 2022, as it was a year ago.”
Inslee is right about what’s broken; but he’s wrong about the tool.
The proposed legislation still is being drafted, and the governor’s office is looking for a state lawmaker to serve as a sponsor as the Legislature prepares to begin its 60-day session on Monday.
However, even without seeing the details of the bill, it’s not the solution that’s needed here.
Simply put, the law would likely prove to be either an unconstitutional encroachment on First Amendment protections of free speech or so narrowly written as to be ineffective in swatting down such lies.
“You combat bad speech with better speech, not criminal sanctions,” tweeted state Rep. Drew Stokesbary, R-Auburn. “Threatening to jail people for political speech is as dangerous to our democracy as questioning election results.”
Such a law would have to be written to get around a 2007 state Supreme Court ruling that overturned a $1,000 fine by the state Public Disclosure Commission against a candidate who made a demonstrably false claim against a state senator the candidate was challenging.
In that 5-4 ruling, the majority found the law used by the PDC to be unconstitutional. “The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Justice James Johnson wrote for the majority in Rickert vs. the State of Washington and the PDC.
Inslee, however, said he believes the proposed law can be drafted to fit within the state and U.S. constitutions.
“The U.S. Supreme Court has made it clear that speech can be limited where it is likely to incite lawlessness,” a statement from the governor’s office said, citing the 1969 case, Bradenberg v. Ohio.
Inslee gets some support from one justice in the 2007 court majority. Then-Chief Justice Gerry Alexander agreed the PDC law was overly broad and unconstitutional, but wrote “the majority goes too far in concluding that any government censorship of political speech would run afoul of the United States and Washington constitutions.”
The difficulty in drafting the legislation is in specifying how a lie about an election is likely to lead to violence. The lies regarding election fraud that were trafficked by Trump and his supporters are most likely to discourage voters, including Republican voters — as it appears was the case in the special elections for Georgia’s U.S. senators that followed the November election — than they are to incite violence or lawlessness. Granted, such lies are dangerous to the public’s faith in elections and democracy, but it took more than the lies themselves to incite the mob on Jan. 6, 2021.
And truth still has its defenders.
Shortly after the Jan. 6 insurrection, failed Republican candidate for governor, Loren Culp, who had filed a lawsuit against then-Washington Secretary of State Kim Wyman alleging widespread election fraud and irregularities in his election loss, withdrew his lawsuit when state Attorney General Bob Ferguson threatened legal sanctions against Culp for making “meritless claims in a court of law.”
As well, newspapers and other media outlets, state and federal officials — Democrats and Republicans alike — election watchdogs, courts, cybersecurity experts, academics and ordinary citizens have stood ably against the lies and defended election systems and procedures in all 50 states.
Those are the right tools for the job.