Maryland Case May Discourage Political Dirty Tricks | WAMU 88.5 - American University Radio
Filed Under:

Maryland Case May Discourage Political Dirty Tricks

Play associated audio

A little-noticed trial in Maryland could affect how many dirty tricks voters will see in the upcoming elections — things like anonymous fliers or phone calls telling people to vote on the wrong day, or in the wrong precinct, or that they can't vote at all if they have an outstanding parking ticket.

The tactics are often illegal, but it's rare for anyone to get caught, let alone end up in court.

The case in Maryland involves the 2010 rematch between former Republican Gov. Bob Ehrlich and incumbent Democrat Martin O'Malley. On Election Day, the Ehrlich campaign knew that things weren't going well. It was losing African-American voters in droves.

At around 3 p.m., Ehrlich's political director, Bernie Marczyk, sent campaign manager Paul Schurick an email asking, "What does Julius need to make the city turnout stay low?"

Julius Henson was a consultant hired to help the campaign with the black vote. The city was Baltimore, where many of the state's black voters live.

Two hours later, Schurick gave Henson the go-ahead to start making robocalls to about 110,000 registered Democrats in and around Baltimore. An unidentified female caller essentially said the election was over.

"I'm calling to let everyone know that Gov. O'Malley and President Obama have been successful. Our goals have been met," the caller said in the message. "Relax, everything is fine, the only thing left is to watch it on TV tonight."

In other words, don't bother voting.

A Difficult Charge To Prosecute

Schurick faces four criminal counts for, among other things, allegedly using fraud to discourage voters from going to the polls. A jury is expected to decide the case this week. Henson also faces charges for the phone calls, but his trial has been postponed until February.

Schurick says he never saw the political director's email and that he approved the robocalls because the consultant told him they were counterintuitive — that they'd encourage Democrats thinking about supporting Ehrlich to hurry up and vote.

Prosecutors say that defies common sense and the calls were clearly an effort to suppress the African-American vote. But according to Rick Hasen, an election expert at the University of California Irvine School of Law, the First Amendment gives a wide space for political speech, making such cases difficult to prosecute.

"There's all kinds of misleading stuff that goes on in campaigns and we don't want to criminalize people from engaging in sharp language and even potentially deceptive language that could, in fact, be constitutionally protected speech," says Hasen.

And he says it's a difficult line to draw. Indeed, Schurick's attorneys are already laying the groundwork for an appeal on constitutional grounds, if need be. Hasen notes that state laws also vary greatly on the use of deceptive campaign practices, and there's no federal statute against them — despite efforts by then-Sen. Barack Obama a few years ago to get one passed.

A Strong Message

Still, Gilda Daniels, a former Justice Department official, thinks the Maryland case sends a strong message that such tactics are increasingly frowned upon.

"Even if [Schurick is] not found guilty, I think the fact that there has actually been a case brought of this type is a victory. If he's convicted, then it certainly highlights it even more," Daniels says.

Former Republican operative Allen Raymond agrees, but he says people can do some crazy things in the fog of a campaign.

"Sometimes when people want to win, something sounds like a great idea at 11 o'clock at night at campaign headquarters, but in the light of day isn't such a great idea," Raymond says.

And he should know. Raymond went to prison for his role in jamming Democratic Party phone lines in the 2002 New Hampshire Senate race. Raymond says the real question is why the Ehrlich campaign would even bother, since there's little evidence deceptive tactics work.

"He wasn't going to win that race. ... It was a done deal, [it was] over," Raymond says. "How many people did they think who received this phone call were actually going to stay home?"

And indeed, one Democratic recipient testified that he was so angry when he got the call — and saw it as a trick to discourage him from voting — that he immediately went out to vote.

Copyright 2011 National Public Radio. To see more, visit


Clerical Error Puts Church On New York's 'George Carlin Way'

The street named after the late comedian, who was known for his blistering attacks on religion, ended up being a block longer than city officials intended.

This Fine Wine Made At An Italian Penal Colony Is No 2-Buck Chuck

Off the coast of Tuscany, prisoners serving the end of their sentences are learning to make wine from a 30th-generation winemaker. It's a unique approach to rehabilitation that seems to be working.

Obama's Request For Immigration Funds Meets Pushback On The Hill

President Obama has asked Congress for $3.7 billion to address the influx of immigrant children at the U.S.-Mexico border. The Senate Appropriations Committee is holding a hearing about the request.

A New Device Lets You Track Your Preschooler ... And Listen In

LG's KizON wristband lets you keep tabs on your child. But some experts say such devices send the wrong message about the world we live in. And the gadgets raise questions about kids' privacy rights.

Leave a Comment

Help keep the conversation civil. Please refer to our Terms of Use and Code of Conduct before posting your comments.