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Ann Mullen, (313) 400-8562,  

June 15, 2023


DETROIT – Today, the American Civil Liberties Union of Michigan (ACLU) and Promote the Vote (PTV) filed a brief with the Michigan Supreme Court arguing that the state should be permitted to prosecute two individuals accused of engineering an illegal scheme to suppress the vote in Black communities during the 2020 election. John Burkman and Jacob Wohl are accused of arranging to make a series of robocalls that attempted to dissuade Black voters, during the height of the COVID pandemic, from voting by mail. The robocall messages falsely warned that voting by mail could result in a check on outstanding warrants, debt collection, and forced COVID vaccinations. Last year, Mr. Burkman and Mr. Wohl each pleaded guilty to felony telecommunications fraud in Ohio after orchestrating a robocall scheme there similar to the one they are accused of engineering in Michigan. In addition, the two were just fined $5.1 million by the Federal Communications Commission for their “unlawful” pre-election robocalls. 

In their brief, the ACLU and PTV explain why, contrary to Burkman and Wohl’s arguments, the First Amendment does not prohibit the government from restricting and punishing intentionally false speech about the time, place, manner, or legal consequences of voting when that speech is uttered for the purpose of disenfranchising voters.  The brief also provides the court with a legal path to allow the prosecutions here while not also endangering the rights of voters, candidates, protesters, and activists to speak freely during heated election campaigns. While it is important to protect voters against false speech designed to disenfranchise them, the brief argues, it is also important to protect the right to speak freely, and even sometimes inaccurately, about political issues and campaigns. The ACLU and PTV’s brief explains how courts can balance these tensions in a manner that complies with the First Amendment and protects the fundamental right to vote.  

Phil Mayor, Senior Staff Attorney at the ACLU of Michigan, said: 

"For our democracy to thrive, we need to protect both the fundamental right to vote free from intimidation and improper attempts at disenfranchisement as well as the fundamental right to freedom of speech.  The alleged robocalls in this case were racist, repugnant, and clearly crossed a line by deliberately lying to Black voters about the legal consequences of voting by mail. The First Amendment protects a vast range of speech, but it doesn’t protect these types of lies, directed at a historically disenfranchised group, in an attempt to suppress the Black vote. Today we are urging the Michigan Supreme Court to say exactly that, but to do so in a careful and thoughtful way that ensures that the Court’s ruling cannot later be weaponized against the type of rough-and-tumble speech that is common in political campaigns and necessary to carry on political dialogue in a sometimes messy democracy." 

Micheal Davis, Executive Director, Promote the Vote, said: 

"Defendants' racially targeted voter suppression campaign has no place in our state or this country.  Just last year, the voters of Michigan passed a constitutional amendment ensuring all eligible voters can cast their ballot free from harassment, intimidation, or interference. There is no question that the conduct the defendants are accused of is unlawful. The only matter that remains is whether the state of Michigan will hold individuals accountable for such conduct and create a deterrence against future voter suppression efforts. If such conduct evades prosecution, it will serve as a green light for future efforts to disenfranchise voters of this state, especially voters of color.   Regardless of the path the court takes, PTV will remain steadfast in our work to protect and defend the rights of every eligible voter in Michigan." 

The brief filed by the ACLU and PTV is below.