The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Rud v. Fischbach, decided Wednesday by Administrative Law Judge Barbara Case of the Minnesota Office of Administrative Hearings:
Respondent Michelle Fischbach is a United States Congresswoman representing Minnesota's Seventh Congressional District. She is seeking reelection to that office in the general election to be held on November 8, 2022….
Complainant alleges that:
(1) Respondent violated Minn. Stat. § 211B.06, by disseminating false campaign material related to the 2020 United States Presidential election;
(2) Respondent violated Minn. Stat. § 211B.07, by disseminating false claims about the 2020 Presidential election in order to cause duress and compel voters to vote for her;
(3) Respondent violated Minn. Stat. § 211B.13, by posting a request for donations to former "President Trump's Election Defense Fund" on her campaign website to induce voters to vote for her; and
(4) Respondent violated her oath to uphold and support the United States Constitution by repeating false claims about the validity of the 2020 Presidential election results and by supporting groups that sought to violently prevent the peaceful transfer of power on January 6, 2021….
[A.] False Campaign Material (Minn. Stat. § 211B.06)
Complainant maintains that Respondent disseminated false campaign material relating to the 2020 Presidential election. Complainant identifies statements Respondent made or posted on her campaign website between November 2020 and May 2021 that he maintains were factually false and disseminated with reckless disregard as to whether they were false. The statements concern allegations of voter fraud and other irregularities in the 2020 Presidential election…. [But] Minn. Stat. § 211B.06 has been invalidated by the federal courts. In 2014, the United States Court of Appeals for the Eighth Circuit determined that there was no way, consistent with First Amendment guarantees of free speech, to narrowly construe this statute. Accordingly, it declared the prohibitions on false campaign speech void and unenforceable….
[B.] Undue Influence (Minn. Stat. § 211B.07)
Minn. Stat. § 211B.07 … states:
A person may not directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question. Abduction, duress, or fraud may not be used to obstruct or prevent the free exercise of the right to vote of a voter at a primary or election, or compel a voter to vote at a primary or election. Violation of this section is a gross misdemeanor.
To establish a prima facie violation of Minn. Stat. § 211B.07, Complainant must allege facts that could lead the tribunal to conclude that Respondent used or threatened to use "force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury" against individuals to compel them to vote for or against a candidate.
The Merriam Webster Dictionary defines "compel" to mean "to drive or urge forcefully or irresistibly," or "to cause to do or occur by overwhelming pressure." "Undue influence" has been defined to mean: "coercion, amounting to a destruction of one's free will, by means of importunities, flatteries, insinuations, suggestions, arguments, or any artifice not amounting to duress. It is ordinarily of an insidious nature and exercised by one in close confidential relation to the victim."
The conduct Complainant cites in support of his undue influence claim again concerns statements and campaign website postings Respondent made in 2020 and 2021. The statements and postings repeat concerns raised by former President Trump about the validity and integrity of the 2020 Presidential election results. For example, Complainant asserts that in 2020 Respondent posted a request on her campaign website that voters call a hotline to report irregularities or concerns about the election in order to help the "Army for Trump." Complainant contends that this statement amounted to undue influence on voters. Complainant maintains that Respondent's statements regarding alleged voter fraud and irregularities caused voters to feel intimidated and threatened. According to the Complaint, Respondent "used her undue influence during the 2020 election to compel individuals to either voter [sic] for [Respondent] or Trump or to feel duress …" …
Complainant has failed to allege any facts to support finding that Respondent used or threatened force, coercion, violence, damage, harm, loss, or undue influence to compel persons to vote for or against a particular candidate in violation of Minn. Stat. § 211B.07.
Candidates for elective office have a First Amendment right to speak out on disputed issues and express themselves on matters of public importance. And while the claims of voter fraud in the 2020 Presidential election have been rejected by numerous courts, Respondent's opinions and statements related to the 2020 Presidential election do not support a claim of undue influence on voters in violation of section 211B.07….
[C.] Prohibition on Bribery and Solicitation (Minn. Stat. § 211B.13) …
Complainant alleges that on November 6, 2020, Respondent posted on her campaign website a solicitation for donations to former "President Trump's Defense Fund." .. [But t]he statute prohibits a person from giving, loaning, or promising to give something of monetary value to induce a voter to vote in a particular way. Complainant has not alleged that Respondent gave or promised to give money or something of value to induce voting. Instead, the Complaint alleges only that Respondent encouraged others to donate to former President Trump's legal defense fund….
[D.] Constitutional Claims
Finally, Complainant alleges that Respondent violated her oath of office to support and defend the U.S. Constitution by repeating false claims of election fraud related to the 2020 Presidential election.
The Administrative Law Judge's jurisdiction with respect to campaign complaints, is limited to alleged violations of Minn. Stat. §§ 211A.01—.14 or 211B.01—.37. The Judge does not have jurisdiction to hear and adjudicate campaign practice claims arising under any other chapters of Minnesota Statutes or the United States Constitution. Therefore, Complainant's alleged violations of the United States Constitution were not considered and must be dismissed for lack of subject-matter jurisdiction….
To get the Volokh Conspiracy Daily e-mail, please sign up here.