Voter intimidation seems like it’s more common than ever. When does advocating for your preferred candidate become criminal?
It’s clear that voter intimidation is an issue throughout the United States. In every election, in modern-day society, no matter the issues or the candidates involved, there’s also some form of intimidation present. Whether it’s hate spewed on social media, threats made online, in-person intimidation, or something that seems more innocuous, it’s omnipresent. But not everything that might sound wrong – even things that some people might consider “intimidation” – are criminal acts. Various important principles, such as your freedom of speech, apply when we’re dealing with elections. So, where does the line fall between criminal conduct and simply exercising your rights?
Van Severen Law Office, S.C. is a criminal defense law firm based in Milwaukee, WI. Our entire practice focuses on defending individuals accused of committing crimes throughout Wisconsin. Whether that crime is election threats, voter fraud, election bribery, disorderly conduct, or a completely different charge, we’re in the position to help. Considering the fact that this is all we do, we thought it’d be helpful for you to understand what the law does and does not allow.
And while we hope this blog post is helpful for you avoiding trouble, it’s important to remember who to call if you get thrown in handcuffs. We’re available 24/7/365 at (414) 270-0202.
What if you’re just causing a ruckus about the election?
Let’s consider an example. You’re out for a night on Brady Street and after a few drinks you decide that you really, really need to start chanting the last name of your favorite politician. Sure, it’s annoying, but this conduct isn’t necessarily criminal yet. But then the bouncer asks you to leave. You refuse. And you start adding curse words and getting into the faces of others. Somebody expresses a preference for an opposing candidate and you shove him.
Surely this is just because you feel so passionate about politics. But it’s also probably enough to earn a pair of handcuffs.
You’re committing disorderly conduct. It’s a Class B misdemeanor, punishable by up to 90 days in jail, $1,000.00 in fines, or both. In order to be charged with disorderly conduct, the following must occur:
- Firstly, you engaged in violent, indecent, profane, boisterous, or unreasonably loud conduct.
- And secondly, that conduct, under the circumstances as they then existed, tended to cause or provoke a disturbance.
The shove is also likely misdemeanor battery, but that’s not completely relevant to our conversation regarding election interference.
It is very important to recognize that facing this charge wasn’t about your choice of candidate. Being in a noisy bar on Brady Street, it’s not even necessarily about the chanting (although it gets close. It’s arguable whether that tends to cause or provoke a disturbance). The disorderly conduct charge is the result of getting in the faces of others (boisterous or violent), swearing (profane), shoving (violent) and being unreasonably loud while doing it. All of those things tended to cause or provoke a disturbance, satisfying the second element of the offense.
What if you’re causing a ruckus about the election, but it’s outside of an elementary school used as a polling place?
So let’s assume you still feel passionately about politics, and you decide that you’re going to bring your AR-15 to the elementary school down the block on date of the election. “Nobody’s cheating this time,” you say to your neighbors as you set off on your journey.
As you approach the school you decide that there needs to be some vigilante security. There’s one parking lot with one entrance, and you post up near the driveway into the lot. Your weapon is on a sling keeping it in the front of your body. Even though you have no military service or experience, you want to look tactical, so you hold the pistol grip but keep your index finger extended off the trigger. Eventually, you start stopping cars to make sure everything looks right.
This conduct looks a lot like something that satisfies a law called election threats. Defined in section 12.09 of the Wisconsin Statutes, the law requires:
(1) No person may personally or through an agent make use of or threaten to make use of force, violence, or restraint in order to induce or compel any person to vote or refrain from voting at an election.
Secondly, bringing your gun to the school zone is a Class I felony, in violation of section 948.605(2) of the Wisconsin Statutes. Election threats is also a Class I felony. Both of these offenses are punishable by up to 3.5 years in prison, $10,000.00 in fines, or both.
The conduct we’ve described appears to be a threat to use force, and certainly results in a restraint on the ability of individuals to vote.
Is handing out pamphlets supporting a specific candidate a crime?
Wisconsin law obviously values keeping polling locations safe and protecting all voters. Handing out pamphlets passively could sound harmless to some people. But in specific circumstances it’s actually a crime called electioneering. Electioneering, at least for purposes of this specific law, refers to any activity intended to influence voting in an election.
Section 12.03(2) of the Wisconsin Statutes describes the circumstances that turn this into a criminal act:
(2) No person may engage in electioneering during polling hours on any public property on election day within 100 feet of an entrance to a building containing a polling place. This subsection does not apply to the placement of any material on the bumper of a motor vehicle that is located on such property on election day.
This law is broad and covers a lot of conduct. It’s certainly possible that a creative prosecutor could use an electioneering charge against an individual simply discussing the candidate or side of a referendum they prefer. It certainly is “any activity” and depending on the conversation, could be aimed at influencing the way the other individual votes. The law prohibits electioneering that occurs on election day within 100 feet of the entrance of the building containing the polling place.
Electioneering is a Class B misdemeanor. That means it’s punishable by up to 90 days in jail, $1,000.00 in fines, or both. It carries the same potential punishment as the disorderly conduct charge we discussed earlier.
Handing out pamphlets (assuming the content of them doesn’t violate some other law) is not a criminal act when not done on election day and not within 100 feet of the polling place.
So what isn’t voter intimidation?
If you’re worried about the security of an election, either contact one of the major political parties or follow the proper channels to become an election observer. While not criminal on its own, getting drunk and discussing politics out in public is probably not a good idea, especially if you have an inclination towards violence. And if you’re trying to figure out a way to influence voters showing up to the polls (even if they’re just pamphlets), just don’t do it.
Conversations about politics can get heated, and that’s fine. We can disagree. In proper circumstances (those that avoid a disorderly conduct charge), raising your voice, swearing, and getting angry are all acceptable. That’s not voter intimidation. But when you try to trick others into voting a specific way, you’re entering dangerous territory. The same goes for trying to stop voters, or even just trying to scare them.
It is never, and will never, be voter intimidation to have respectful conversations regarding political issues with friends, family, strangers, and people on the other side. It’s the opposite – this is the kind of activity that keeps democracies alive.
Van Severen Law Office, S.C. represents Wisconsin defendants facing voter intimidation charges.
We get it: modern elections feel like the world is at stake. Sometimes the excitement and anxiety attached to these events gets the best of us. In other situations, it gets the best of others and we’re accused of things that simply aren’t factual. At Van Severen Law Office, S.C., we represent individuals facing all sorts of criminal issues. Whether it’s a criminal charge regarding a political issue, or anything else, we’re in the position to help.
Contact us at (414) 270-0202. We offer free consultations to potential clients and look forward to learning your story.