OLYMPIA — One Big Lie, two different approaches.
Washington Senate lawmakers Friday held public hearings on a pair of bills seeking to deter claims of election fraud that have sparked violent political clashes since the 2020 election.
In the wake of the 2020 elections, two people were shot at separate political clashes in Olympia during a period of regular weekend protests promoting baseless claims of fraud. Then came the insurrection at the U.S. Capitol on Jan. 6, 2021. That same day, demonstrators protesting the election breached the gate of the governor’s residence in Olympia. The action forced Gov. Jay Inslee to a secure location.
Now, Inslee is pushing for Senate Bill 5843, which would make it a gross misdemeanor for elected officials or candidates to “knowingly, recklessly or maliciously” lie about election results if those lies led to violence. In Washington, a gross misdemeanor brings a penalty of up to $5,000 and confinement in county jail for as many as 364 days.
Inslee’s proposal — which is being sponsored by Sen. David Frockt, D-Seattle — has drawn national attention and questions whether it would violate First Amendment prohibitions on free speech. Republicans swiftly criticized the proposal as criminalizing speech.
On Friday, the governor testified at the public hearing for his bill at the Senate State Government and Elections Committee, which met via teleconference.
“The horrific insurrection we witnessed at the U.S. Capitol — and the mob that broke through the barriers here in the Capitol — they represent the here-and-now,” Inslee said during the hearing. “And they are harbingers of what will come forward if we do not act.”
“I think this bill is really pro-democracy,” the governor added later. “Because it is neutral, it applies to every politician — regardless of your party — and it is very carefully written to protect the First Amendment as well.”
Speaking at the hearing, a constitutional scholar from George Washington University said she believes the updated version of the bill could stand up to a court challenge.
“There is no way to know what will happen when this is challenged in court, assuming it’s challenged in court,” said Catherine Ross, George Washington University professor of law who specializes in First Amendment issues.
Still, “This bill treads a lot of fresh territory in trying to evade all the obstacles,” added Ross. “I think there’s a real shot at surviving.”
In an interview Friday, Ross, who recently published a book titled “A Right to Lie? Presidents, Other Liars, and the First Amendment,” said she was skeptical about the original draft of Inslee’s bill: “I thought it was deeply flawed.
“But I thought it was something to work with,” said Ross, who gave input that Frockt and Inslee incorporated into the updated version of the bill.
The early version of the bill focused on making sure it cleared the free speech standards set by the U.S. Supreme Court in the 1969 ruling known as Brandenburg v. Ohio.
But, “Since 2012, when the Supreme Court issued a ruling in the case known as Alvarez v. United States, every state’s campaign falsehood statutes that have been challenged in court have been overturned,” Ross said.
Alvarez was a case involving free speech in an instance of stolen valor, Ross said, and “The Supreme Court said you cannot criminalize statements just because they’re false.”
Inslee’s bill goes beyond that because there is harm coming from election-fraud lies, Ross said first to the body politic. There’s also harm to the duly-elected officeholder who did in fact win the election, she said.
In defining the factual outcome of an election, Ross pointed to court proceedings that resolve disputes over vote counts, as well as the official certifications of election results.
With those, “That is now a fact,” she said. “The election is a fact.”
Paul Guppy, vice president of the Washington Policy Center, a conservative think tank, spoke against the bill. Guppy cited the 2004 gubernatorial election between Dino Rossi and Christine Gregoire, which dragged on through multiple recounts and a lawsuit before Gregoire was declared the winner.
“It doesn’t increase the confidence in the outcome of the election, it actually creates more suspicion when people are not allowed to debate the outcome of the election honestly,” Guppy said.
After that 2004 election, officials moved to revamp Washington’s elections system, ultimately moving to all vote-by-mail elections.
The current system includes a range of safeguards to prevent fraud and Washington now is considered one of the better-protected states against foreign election interference.
In Washington’s 2016 and 2018 general elections, the state secretary of state’s office — then overseen by Republican Kim Wyman — identified 216 cases of possible fraud. That was approximately .003% of the 6.5 million votes in those two elections.
Friday’s committee meeting also included a public hearing on a bill by Sen. Keith Wagoner, R-Sedro Woolley, intended to increase voter trust.
“I do specifically take issue with the governor’s approach that the best way to combat disinformation — which he seems very concerned about — is to try and force people to agree,” Wagoner said in an interview. “A better approach is to build confidence in the system and bring them around that way.”
His Senate Bill 5679 would, among other things, give the Washington State Patrol the ability to spot-check some voter signatures on 2022 ballots and compare them to signatures on file. It would waive the cost of an enhanced driver’s license or government-issued identification card for individuals earning less than 200% of the federal poverty level.
The bill — which Wagoner drafted last year — seeks to compile a report “of all prosecuted election law violations and outcomes of the cases,” according to a legislative analysis.
In the hearing, Wagoner said he wanted “the people to have the same degree of confidence in our elections that I have.”
“But you can’t force confidence,” he added. “It has to be earned.”