Bill to criminalize lying about elections in WA appears dead

February 15, 2022 / 3:24 pm

caption: In January, Gov. Jay Inslee took the unusual step of testifying in a legislative committee in favor of a bill he requested to make it a crime for elected officials and candidates for office to incite lawlessness by making false statements about elections. That bill failed to clear the Washington Senate before a key cut-off deadline on February 15.

A measure backed by Washington Gov. Jay Inslee that would have made it a crime for elected officials and candidates for office to incite lawlessness by making false statements about elections appears to have died in the state Legislature.

The bill, SB 5843, failed to get a vote in the state Senate before a key cut-off deadline Tuesday.

The prime sponsor of the measure, Democratic state Sen. David Frockt, said the proposal didn’t have the votes to pass.

“We have to respect that the bill in its current form did not have enough support to advance despite the care we took in its drafting through our consultation with leading First Amendment scholars,” Frockt said in a statement.

Inslee said the law was needed to address language from public officials that he said amounted to “yelling fire in the crowded theater of democracy.”

“It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results, and unfortunately they are doing that,” Inslee said last month. “This needs to be made illegal.”

The bill would have made it a gross misdemeanor for candidates and elected officials to knowingly make false statements about the legitimacy of an election, if those statements were intended to incite lawlessness and, in fact, resulted in individuals or a group damaging property or harming others.

If it had passed, it likely would have been the first of its kind law in the nation.

Inslee’s office worked with top constitutional law experts, including retired Harvard law professor Laurence Tribe and Catherine J. Ross of the George Washington University Law School, to craft the final language of the bill.

In testimony before the Senate State Government and Elections Committee in January, Ross called the bill a “serious, careful effort” and said she thought it could withstand a constitutional challenge.

“This bill trods a lot of fresh territory in trying to evade all of the obstacles, but it’s exceedingly carefully crafted; I think it has a real shot at surviving,” Ross said.

Inslee’s office cited the 1969 U.S. Supreme Court decision in Brandenburg v. Ohio which held that the First Amendment generally protects speech that encourages people to break the law, but not speech that directs or incites “imminent lawless actions.”

Inslee, in a rare move, also personally testified in favor of the bill.

“I think after January 6th, we have to ask this question: do politicians think they have the right to foment violence and degrade our democracy by knowingly lying about election results? No they do not,” Inslee said in his testimony.

But opponents like Jerrod Sessler, a Republican candidate for Congress in eastern Washington, insisted the proposal, if passed into law, would violate both the state and federal constitutions.

“The governor is stepping out of his executive powers and into legislative powers — into a dictatorship,” Sessler told the committee during the public hearing.

While the election lies bill has stalled, the Washington Senate has passed another proposal to make it a Class C felony to threaten an election worker. Additionally, the Senate approved a bill that would protect election officials from cyber harassment. The Senate has also passed a bill to expand the state’s Voting Rights Act and another measure to regulate synthetic video and audio known as “deep fakes.”

“So we move forward and we make progress where we can to ensure that the right to vote, the most fundamental building block of our democracy, is protected against deception and violence,” Frockt said in his statement.