OLYMPIA, Wash. – Washington Gov. Jay Inslee on Friday urged state lawmakers to approve a bill that would make it a crime for elected officials or candidates to knowingly lie about election outcomes if those claims result in violence. Inslee, a Democrat, said that the measure “confronts an unrelenting threat that is a clear and present danger in our society.”
Inslee proposed the bill earlier this month, citing the Jan. 6, 2021 attack on the U.S. Capitol and an incident that same day where a group breached the gate of his residence in the state capital of Olympia — which prompted Washington state security officials to rush him to a safe room.
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“The big lie, that we can't trust our democracy to count the votes, has become a weapon, and that weapon is being used all over America, including right here in our state and it will again incite violence,” Inslee told the state's Senate Government and Elections Committee.
The measure would make it a make it a gross misdemeanor with penalties of up to a year in jail and a $5,000 fine for candidates and elected officials to “knowingly, recklessly, or maliciously” lie about election results that result in violence.
They would also be prohibited from falsely claiming they they are entitled to elected positions they did not win and from making false statements that undermine election processes or results.
In addition to the criminal penalties, elected officials who are convicted would also be removed from office.
Opponents have argued the bill is not constitutional, but Inslee told the committee his staff worked with legal scholars to refine the bill and protect First Amendment rights to free speech.
The bill's sponsor, Democratic Sen. David Frockt, said that it is written to align with key rulings, including the standard laid out by the U.S. Supreme Court in its 1969 decision in Brandenburg v. Ohio, when the justices ruled that the government can suppress speech that is designed to produce imminent lawless action and is likely to do so.
Catherine J. Ross, a constitutional law professor at George Washington University Law School, told the committee that she consulted on and helped craft the language of the bill.
When asked by Republican Sen. Brad Hawkins, a member of the committee, if the bill was constitutional, Ross responded that there was “a very narrow window here, and lots of obstacles.”
“There is no way to know what will happen when this is challenged in court, assuming it is challenged in court, because this bill treads a lot of fresh territory in trying to evade all of the obstacles,” she said. “But it's exceedingly carefully crafted. I think it has a real shot of surviving.”
There is a severability clause in the bill, which means if one or more elements of the proposal are found unconstitutional, the other elements would still be valid as state law.
Laurie Buhler, a teacher and small business owner from the small city of East Wenatchee, testified against the measure, saying people should be able to speak their mind about elections without having to fear the prospect of facing criminal charges.
“If someone behaves in a violent manner, the responsibility is on the person who does the criminal behavior,” she said.
Frockt, who also has sponsored a bill making it a felony to harass election workers, said the election misinformation that has happened across the U.S. since the 2020 presidential election can't be dismissed.
“It’s about the peaceful transfer of power,” he told the committee. “This is about whether the legitimacy of our elections is going to be upheld by the rule of law or crushed under the foot of the mob.”