People v John Burkman
In August 2020, conservative provocateurs John Burkman and Jacob Wohl disseminated a robocall in Michigan’s 313 area code, which mainly encompasses Detroit. The call said that it was from a civil rights organization and purported to warn of the dangers of mail-in voting in the upcoming presidential election:
Hi, this is Tamika Taylor from Project 1599, a civil rights organization founded by Jack Burkman and Jacob Wohl. Mail-in voting sounds great, but did you know that if you vote by mail your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The CDC is even pushing to use records from mail-in voting to track people for mandatory vaccines. Don’t be finessed into giving your private information to the man. Stay safe and beware of vote by mail.
Based on emails between Burkman and Wohl that later came to light, the aim of the message was to dissuade Blacks in the Detroit area from voting.
Michigan Attorney General Dana Nessel charged Burkman and Wohl with voter intimidation under MCL 168.932(a), which states:
A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.
The case was bound over for trial after a preliminary examination before Judge Kenneth King in the 36th District Court in Detroit. Michigan criminal defense attorneys for Burkman and Wohl then filed a motion to quash the charges in the 3rd Circuit Court in Detroit. They argued that the statute did not apply to Burkman and Wohl’s conduct and that even if it did the statute unduly restricted free speech in violation of the First Amendment. Judge Margaret Van Houten denied the motion on both grounds.
Burkman and Wohl appealed, and the case was heard by the Michigan Court of Appeals. That court—with a panel comprised of Judges James Redford, Jane Markey, and Michelle Rick—affirmed the circuit court’s decision, holding that the statute applied to the robocall and that the statute was not unconstitutional.
Burkman and Wohl applied for leave to appeal in the Michigan Supreme Court, which was granted on November 2, 2022. The Court will consider “(1) whether the Court of Appeals properly interpreted MCL 168.932(a); and (2) whether MCL 168.932(a) is unconstitutional on its face or as applied to the defendants.” Oral argument has not yet been scheduled. Burkman is represented by Scott Grabel of Grabel & Associates.