by Ashley Ward

What thought comes to mind upon hearing the word “Robocall”? For most, the thought conjures ideas of annoying telemarketing. However, for Democrats in the Baltimore and Prince George’s Counties, robocalls received on the 2010 election night added new thoughts to the definition: voter confusion and suppression. Before the polls closed for the 2010 Gubernatorial Race, residents received a call from an unnamed woman who said: “I’m calling to let everyone know that Governor O’Malley and President Obama have been successful. Our goals have been met…The only thing left is to watch it on TV tonight. Congratulations and thank you.” Listen Here

The message seemed to imply that the Democratic candidate had already won the election and therefore the residents’ vote would be excessive and not needed. This implication was ill-gotten because there was no way to know at that time which candidate won. Many confused and upset residents contacted Gov. O’ Malley’s campaign center to complain.  Further investigation proved that the governor and his team had nothing to do with the calls. In fact, investigators determined that the members of the Republican candidate, former Gov. Eurlich’s team were responsible for the calls that have been considered by many to be a tactic to discourage the African American vote.
Paul Schurick, the former governor’s campaign manager, and infamous campaign consultant Julius Henson are charged with three counts of conspiracy to violate election laws, one count of influencing votes through fraud, and one count of failing to identify the sponsor of the robo-calls. If found guilty, each charge holds a maximum of five years in prison. Mr. Henson, an African American, has worked in politics for years, encouraging black voters. In the past, he has typically worked for Democratic candidates. However, Eurlich’s team paid him $32,000 to work on his campaign. According to the prosecution, in return, Mr. Henson created the robocall which was sent to over 110,000 democrat residents in primarily African American areas.

Although this tactic can be akin to the outlawed voter suppression used in the 1950’s pre civil rights Deep South, Maryland is not the only state taking on political robocalls. Indiana’s Auto Dialer Law (Indiana Code 24-5-14) outlaws any automotive calls to residents without providing a live operator to solicit the caller’s permission before playing the message. A violation of this law leads to a civil lawsuit by the Attorney General with penalties up to $5,000. In 2010, Indiana’s Attorney General, Greg Zoeller created a pledge for political parties to sign which renounced robocalls,  and since its signing the Office of Attorney General has received a decline in the number of robocall complaints.

Not all are pleased with the Auto Dialer Law in Indiana. The Indiana Supreme Court recently heard two cases involving the anti-robocall law. State of Indiana v. FreeEats.com involves the attempted enforcement of Indiana Code 24-5-14. FreeEats.com raised a First Amendment issue stating that the law restricted protected political speech. The Solicitor General, Tom Fisher, argued that because the law restricts all calls that do not use a live operator to solicit permission the law does not violate the company’s right to use robocalls. The case is still currently being heard. In Patriotic Veterans v. State of Indiana, the court found that the Auto Dialer Law is  preempted by the federal Telephone Consumer Protection Act, specifically under  the savings clause within the TCPA dealing with “specific intrastate requirements and regulations.”  With the preemption, Indiana can no longer prevent out-of state entities from placing robocalls within the state. Zoller has appealed the judgment and asked for a stay stating: “If the state is not granted a stay, thousands of Hoosiers could be contacted per day with unwanted political calls. Our citizens have come to expect and deserve privacy from the intrusive ringing of their telephones from organizations they have not chosen to hear from. Their privacy rights should be respected as Indiana law has provided.”

So which state gets it right? Maryland’s strategy punishes obvious illegal activity like voter suppression. Yet, Maryland recognizes that not all robocalls are blatantly made for illegal means. Recently, Baltimore City’s Mayor, Stephanie Rollins-Blake used robocalls to prepare Marylanders for the incoming Hurricane Irene. Indiana, on the other hand, outlawed all robocalls unless an operator is used to solicit resident permission. The Supreme Court ignored the First Amendment argument by political  groups, but did find that the law was preempted by TCPA.  Nevertheless, the punishment for breaking Indiana’s law is minimal at best compared to the punishment Paul Schurick and Julius Henson are facing. Maryland wins this round with a more productive and severe penalizing system to illegal political robocalls.

Ashley Ward is a third-year law student at William and Mary Law School.