OLYMPIA — Hypothetical scenario: A candidate for county executive loses an election, then claims there’s been fraud in the county’s election office and announces that something needs to be done about it.
“And supporters hear that and they decide, ‘Well, I’m going to go and firebomb the place,'” said Sen. David Frockt, D-Seattle. “And they go and firebomb the place.”
“That’s not totally dissimilar, arguably, to what took place on Jan. 6,” said Frockt. “But it’s a little more of an extreme example.”
Frockt’s hypothetical came as he explained Senate Bill 5843, the bill requested by Gov. Jay Inslee that would make it a gross misdemeanor for elected officials or candidates to lie about election results if those lies lead to violence. A gross misdemeanor in Washington can bring a fine of up to $5,000 and confinement in county jail for up 364 days.
After more than a year of fraudulent election claims fueled by former President Donald Trump — and closer to home, unsuccessful GOP gubernatorial candidate Loren Culp — Inslee and Democratic lawmakers are envisioning proposals to shore up democratic systems against those who would work outside the constitutional system.
This year’s proposals include another bill by Frockt that would increase criminal penalties for harassment of election workers. And a bill sponsored by Senate Deputy Majority Leader Rebecca Saldaña, D-Seattle, would strengthen and expand the state’s Voting Rights Act. That proposal, Senate Bill 5597, got a committee hearing Friday and is scheduled for a committee vote next week.
But it’s the governor’s proposal that has quickly spurred debate about the balance between free-speech rights enshrined in the state and federal constitutions and the threats to the rule of law amid election lies and debunked conspiracies.
An attorney with the American Civil Liberties Union of Washington said the organization has “initial concerns” about the proposal.
Meanwhile, SB 5843 drew quick condemnation from Republican state lawmakers who questioned whether making lying about elections illegal was constitutional or productive.
“I get a lot of calls and emails throughout the year from concerned constituents on a multitude of different issues,” said Republican Floor Leader Jacquelin Maycumber, R-Republic. “And I have never received an email or a call asking to criminalize speech.”
For Frockt, both the election-lies bill and the bill increasing penalties for harassment against election workers are attempts to shore up the country’s constitutional system.
“My sense is that we have to find a way to push the system back towards truth,” he said. “Back towards some semblance of shared reality about what is taking place.”
SB 5843 may be Frockt’s bill, but the concept came from Inslee.
The governor announced the idea in remarks made on the one-year anniversary of the Capitol insurrection in Washington, D.C.
That was also the one-year anniversary of demonstrators in Olympia protesting election results. The demonstrators breached a gate and stood on the lawn of the governor’s residence, forcing Inslee into a safe room and protective vest.
That day came after a steady escalation after the 2020 election in Olympia between political demonstrators that had already culminated in a pair of shootings at political clashes near the Capitol.
In an interview on the day of the one-year anniversary, Inslee recalled hearing of the insurrection at the Capitol, where he spent years as a member of the U.S. House.
“I just remember this deep, deep not just sorrow but deep anger that people would attack the citadel of democracy, the temple of democracy,” he said. “You know, everything we’ve enjoyed, we’ve been given this precious gift by our ancestors.
“And here, the fact that we may not even keep it … is incredibly disturbing to me,” he continued, adding: “I don’t believe people understand the continuing risk that we face.”
Inslee general counsel Kathryn Leathers said she worked — with Frockt’s input — to try to craft SB 5843 so that it wouldn’t run afoul of constitutional protections for free speech.
A big part of that is the U.S. Supreme Court’s 1969 ruling that overturned the conviction of a Ku Klux Klan leader in a case known as Brandenburg v. Ohio.
That ruling laid out a pair of thresholds to be met in order to prohibit speech, according to Leathers, the top attorney in the governor’s office: “if the speech is directed to inciting or producing imminent lawlessness, and is [also] likely to incite or produce imminent lawless actions.”
The governor’s bill actually has a higher standard than that, Leathers said, because it would apply only if lawless actions were found to have actually occurred.
“So that’s where we think it not only meets but exceeds the Brandenburg standard,” she added.
Nonetheless, the ACLU of Washington has its eye on the legislation, according to Kendrick Washington, a policy attorney with the organization.
While the organization recognizes a balance between political free speech and protecting the democratic process, Washington said there’s concern with ideas that might ultimately put government in charge of deciding what’s true or false.
Additionally, “laws that criminalize speech not only fail to change behavior, but they can be misused to further harm people who are already marginalized” or are disproportionately impacted by the criminal system, Washington said.
In her arguments against the bill, Maycumber, the House Republican floor leader, cited allegations by Democrats in 2016 suggesting that election had been stolen, as questions swirled around the extent of Russian interference.
“Criminalizing free speech, or criminalizing questioning it, goes both ways,” she said. “That’s a dangerous path to go down.”
SB 5843 will get a public hearing at the end of the month, said Sen. Sam Hunt, D-Olympia and chair of the Senate State Government & Elections Committee. Hunt said he hopes to hear from constitutional experts in the hearing.
“I think it’s a good idea,” Hunt said. “The real question of course is whether it meets constitutional muster or not.”
Another bill by Frockt is drawing widespread support, at least in the Senate.
Senate Bill 5148 would elevate the crime of harassment to a Class C felony when that
harassment is directed at election officials working with the state Secretary of State
or county auditor offices across Washington. The crime of harassment is generally a gross misdemeanor, according to a legislative analysis of the bill.
Frockt cited the harassment of a Washington state elections official after the 2020 election, as well as harassment against officials in other states during that election cycle.
“One of the purposes of the legislation … is for it to be known that if you don’t like what’s happening, you don’t have a right to go after the people counting the votes or running the elections,” he said, adding later: “We’re not going to succumb to mob rule.”
That bill passed out of the Senate Wednesday with unanimous support from Democrats and Republicans. It now goes to the House for consideration.
When that bill came up for a vote last year, Saldaña was one of only two lawmakers — both Democrats — who opposed SB 5148.
Her resistance came amid a broader reevaluation among Democrats of the criminal-legal system and whether it’s worth creating new or increased penalties, she said: “We don’t just want to keep adding people to our prisons.”
But in an interview, Saldaña said she since reconsidered her position.
“I think that given that we need to make sure that people who are trying to make our democracy work, that they are protected and that we have their back,” she said.
While she hasn’t yet studied the bill, Maycumber said she supports the concept of criminal penalties to protect election workers.
“We want to make sure that the people who do the jobs to make sure we have this great country are safe,” she said.