The Michigan Supreme Court has ruled that the state statute outlawing voter intimidation prohibits intentional false speech related to voting requirements or procedures if that speech is made in an attempt to deter or influence a vote, announced Michigan Attorney General Dana Nessel. 

Defendants in state voter intimidation prosecutions People v. Burkman and People v. Wohl appealed to the Court of Appeals and then to the Michigan Supreme Court to answer whether Jack Burkman and Jacob Wohl’s specific acts could constitute a criminal act contrary to MCL 168.932(a), as charged by the Department of Attorney General.   

Several direct questions before the court included whether MCL 168.932(a) prohibits nonphysical threats, whether the phrase “other corrupt means or device” in the statute encompassed “any other depraved or immoral method or scheme of deterring or preventing someone from voting or influencing or interrupting someone in giving their vote,” and whether the evidence of the alleged acts from the preliminary examination of defendants Burkman and Wohl supported the ruling that a person could reasonably conclude that this conduct fell within that statutory definition.  

The attorney general argued before the court that the answer to each of these questions was yes, and last Thursday the court agreed with that argument on these points. 

The court also provided a narrowing construction of the statute, ruling that the language “other corrupt means or device” prohibits intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote.  

Based on this ruling, the court remanded the case to the Court of Appeals for consideration of the criminal charges brought by the state, asking that court to review the conduct at issue under the newly issued limiting construction of this provision of election law.   

"This voter intimidation law is a vital protection for Michigan voters and proponents of a participatory democracy,” said Nessel. “Intentionally false statements to deceive any Michigan voter from exercising their rights at the ballot box are illegal, and I’m grateful to have this ruling make that abundantly clear, especially as we head toward another presidential election this autumn. We look forward to continuing with the criminal case and bringing this matter to trial.”   

Nessel filed charges in the 36th District Court in Detroit in October of 2020 against Burkman and Wohl for allegedly orchestrating a series of robocalls aimed at suppressing the vote of predominantly black voters in Detroit in the 2020 general election by promoting falsehoods that: 

• Voting by mail would place voters’ personal information in a public database that will be used by police departments to track down individuals with outstanding warrants.

• Voting by mail would place voters’ personal information in a public database that will be used by credit card companies to collect outstanding debts. 

• The federal Centers for Disease Control and Prevention were attempting to utilize vote by mail records to track individuals for mandatory vaccines. 

The robocall named Burkman and Wohl as responsible for the call and claimed them to be the founders of a “civil rights organization” named “Project 1599.” It closed with a message urging the predominantly Black recipients to not be “finessed into giving your private information to the man. Stay safe and beware of vote by mail.” The attorney general has called the robocall an egregious example of voter suppression.

Jack Burkman, 57, and Jacob Wohl, 25, are each charged with:   

• One count of election law – bribing/intimidating voters, a five-year felony.  

• One count of conspiracy to commit an election law violation, a five-year felony.  

• One count of using a computer to commit the crime of election law – intimidating voters, a seven-year felony.  

• Using a computer to commit the crime of conspiracy, a seven-year felony.   

The people allege Burkman, an Arlington, Virginia resident, and Wohl, a Los Angeles, California resident, attempted to discourage voters from participating in the general election by creating and funding a robocall targeting specific and multiple urban areas across the country, including Detroit. The calls were made in late August of 2020 and went out to nearly 12,000 residents with phone numbers from the 313 area code. 
During its investigation, Nessel’s office communicated with attorney general offices in New York, Pennsylvania, Ohio, and Illinois, all of which reported similar robocalls being made to residents in their states who live in urban areas with significant minority populations. It is believed around 85,000 calls were made nationally, though an exact breakdown of the numbers of calls to each city or state are not available. 

Following the formal charges from the attorney general both men were bound over for trial. Burkman and Wohl filed a motion to quash the charges in the circuit court.  The court denied this motion, and the defendants appealed to the Court of Appeals.  The Court of Appeals declined to hear their appeal. Burkman and Wohl then filed an application in the Michigan Supreme Court, which remanded the matter to the Court of Appeals and required they hear the appeal. The Court of Appeals heard the defendants’ arguments and denied their motion, ruling in a published opinion that the statute fits and criminalizes their conduct and that it is a constitutional application of the statute. Defendants Burkman and Wohl then appealed that ruling to the Supreme Court of Michigan, leading to last Thursday’s ruling. The matter is now before the Court of Appeals to determine whether the conduct at issue here was intentionally false speech that was related to voting requirements or procedures and was made in an attempt to deter Black voters in Detroit.  

In its majority opinion, the court noted that “[g]iven the targeted nature of the robocall, defendants’ e-mails, and the content of the robocall, one could reasonably believe that the robocall was a depraved attempt to deter Black electors from voting in the 2020 election."