The story sounds like the setup of a complicated joke: A disreputable Democratic strategist working for a longshot presidential candidate hires a New Orleans street magician to create a fake Joe Biden robocall to trick voters in the New Hampshire First in the Nation presidential primary.
But the final outcome could be anything but a laughing matter, warns the Coolidge Reagan Foundation—one of America’s leading First Amendment and ethics watchdogs. It accuses the League of Women Voters of using the case to create a new weapon progressives could use to target conservative speech.
The facts of the case aren’t in dispute.
Kramer, a consultant with a reputation for using robocalls with malicious intent, was working for U.S. Rep. Dean Phillips’ campaign in the 2024 Democratic primary, when he paid magician Paul Carpenter $150 to create the fake phone call.
“Voting this Tuesday only enables the Republicans in their quest to elect Donald Trump again. Your vote makes a difference in November, not this Tuesday,” the AI-Biden said in a phone message targeting some 5,000 likely Democratic voters just days before the primary.
The strategy behind the call was never clear. Biden and the Democratic National Committee had removed New Hampshire’s primary from the calendar and the president refused to even put his name on the ballot. Instead, a group of New Hampshire party activists ran a write-in effort on his behalf. How the call was support to benefit Phillips, or anyone else, remains a mystery.
Whatever the purpose, Kramer ran afoul of the law. New Hampshire’s attorney general charged him with 13 felony counts of voter suppression and 13 misdemeanor counts of impersonation of a candidate.
Kramer, Lingo Telecom, and another firm, Life Corporation, were also hit with a lawsuit from New Hampshire’s League of Women Voters. And that, says Dan Backer with the Coolidge Reagan Foundation, is where the real trouble starts.
The League of Women Voters is making what he describes as “an unprecedented argument that the Voting Rights Act contains a private right of action against non-threatening communications they deem false.”
Why is that a problem?
Because if private citizens or groups can invoke the power of the Voting Rights Act against tech companies and social media platforms over content, then well-funded activists could sue any provider over any political message. That threat alone could drive tech companies out of the business of political communications.
“If the League of Women Voters’ argument is not rejected by this Court — and the Department of Justice is supporting it — that the Voting Rights Act contains a private right of action,” Backer warns, “and that these communications, which were in no way threatening, are somehow within the scope of a threat, then what it really means is that they can essentially claim a Voting Rights Act violation against any information that they deem false or untrue.”
Nobody disputes that bad actors like Kramer should be held accountable. The problem, says New Hampshire attorney Richard J. Lehmann, is allowing the legal process to be guided by lawsuits filed by political activists or partisan organizations who weren’t harmed by the actions taken.
“It is important that people who file lawsuits have some actual skin in the game. Otherwise, every time something happens that someone doesn’t like, there would be a feeding frenzy of lawyers filing lawsuits and trying to get fees,” Lehmann told NHJournal. “Like criminal laws, these are cases that should be brought by the government against offenders, and not by random private citizens who are basically no more than witnesses.”
Conservatives are already dismayed by what they see as Big Tech’s bias against their candidates and ideology. Those fears were only amplified when Facebook founder Mark Zuckerberg admitted last month that he censored content regarding COVID-19 under pressure from the Biden administration. He also acknowledged his company wrongfully suppressed true stories about the Hunter Biden laptop in the lead up to the 2020 presidential campaign.
Backer says the playbook progressives could use if the LWV standard is maintained is obvious.
“If the League of Women Voters succeeds with its unprecedented argument, it would be a roadmap for liberal groups across America to litigate not just against campaigns and PACs (and their political vendors), but all of the infrastructure vendors and carriers of everything from phone calls and text messages to social media, email, and targeted social media ads. The net result could be left-leaning companies agreeing to block content in order to avoid legal costs, shutting down huge swaths of political speech they disagree with when it matters most—in an election year.
