You’ve probably never heard of Edna Davis. But the 80-year Republican from Northeast Ohio will have a role tomorrow when the U.S. Supreme Court hears arguments about a controversial Ohio law that bans false speech in election campaigns.
The Ohio election law in question prohibits anyone from making “a false statement concerning the voting record of a candidate or public official’’ or distributing information about an opponent that is known to be false with reckless regard for the truth.
As a Geauga County commissioner in 1985, Davis became one of only two people ever convicted of violating the law when she provided information to a GOP candidate to use in a newspaper advertisement against his opponent.
A judge sentenced her to 60 days in jail and fined her $1,000. Although the judge suspended the jail sentence and reduced the fine to $300, he placed Davis on probation for two years, forcing her to get permission from parole officers to visit her brother in California.
“I can laugh now,’’ said Davis, who will not attend the arguments. “Back then I didn’t laugh for a year. It was probably one of the worst days of my life. I was very, very angry and hurt too. There was no really good reason for it.’’
Three decades after the Davis case, the justices are hearing oral arguments on the same law as they decide whether the anti-abortion non-profit Susan B. Anthony List can challenge the law in federal court in Cincinnati. Fifteen other states have similar laws. Proponents contend that without such laws, politicians and independent organizations will not hesitate to bombard their opponents with commercials that are outright lies.
The case before the court is from the 2010 elections when Susan B. Anthony wanted to charge that by voting for the 2010 health law, then-U.S. Rep. Steve Driehaus, D-Cincinnati, supported paying for abortions with taxpayer dollars.
When Driehaus’ attorney threatened to sue, the billboard’s owner declined to put up the advertisement. Driehaus then filed a complaint to the elections commission which found “probable cause’’ that the advertisement violated the law.
Driehaus dropped the complaint after being defeated by Republican Steve Chabot. But Susan B. Anthony List and a separate group - the Coalition Opposed to Additional Spending and Taxes – filed suit in federal court charging the law violated the U.S. Constitution.
A federal judge and the Cincinnati-based 6th U.S. Circuit Court of Appeals rejected the lawsuits, ruling that neither organization could show it was harmed because the elections commission never issued a ruling.
Although the justices could strike down the law as unconstitutional, legal analysts expect them to narrowly decide whether Susan B. Anthony List can demonstrate it has been so harmed by the law – a legal concept known as standing – that it can sue the state of Ohio and the seven-member Ohio Elections Commission.
“We want our day in (a lower) court,’’ said Michael Carvin, a Washington attorney representing Susan B. Anthony List. “When we do get our day in court, I will vigorously argue the Ohio law is unconstitutional.’’
Ordinarily, an oral argument about legal standing and ripeness would be a ho-hum affair. But this case has prompted a blizzard of legal briefs filed by the U.S. Department of Justice, the American Civil Liberties, comedian P.J. O’Rourke, and the Republican National Committee.
In an even more unusual twist, Ohio Solicitor Eric Murphy will defend the actions of the state elections commission while his boss, Ohio Attorney General Mike DeWine, filed a separate brief asserting the law is unconstitutional, prompting Washington legal blogger Marty Lederman to suggest the case should be re-titled DeWine v. DeWine.
The Justice Department, while not defending the law, argues that Susan B. Anthony List has “established a credible threat of prosecution’’ and deserves a chance to file its suit. But the federal government insists the anti-abortion organization cannot challenge a separate law that requires it to disclose its financial donors.
Davis and three co-defendants were convicted in 1985 of violating the law, but a state court of appeals invalidated two of the convictions. Unfortunately for Davis and a second defendant, the court of appeals upheld their convictions, although neither went to jail.
Under the law, which was approved in the early 1970s and amended in 1976, a candidate can file a complaint with the Ohio Elections Commission, which investigates the charges. Philip Richter, executive director of the elections commission, said the panel received 26 complaints last year compared to 46 in 2012, 46 in 2011 and 96 in 2010.
Richter said since 1995, the commission has recommended prosecution for only five cases. But except for a 2008 case from Ashtabula County, in which a settlement was reached, prosecutors have been reluctant to prosecute anyone.