MANHATTAN (CN) — A man once “on trial for memes” and convicted for conspiring to falsely convince Hillary Clinton supporters they could vote from home on Election Day in 2016 claimed to a Second Circuit panel Friday it isn't against against the law to deceive voters on how to vote in a bid to to overturn his conviction.
Douglass Mackey was sentenced to seven months in prison at the U.S. District Court for the Eastern District of New York in 2023 . He was convicted on a single count of conspiring with others to interfere in the 2016 presidential election after he posted fake advertisements on his far-right Twitter account that encouraged Clinton supporters to vote by text message.
“Avoid the line. Vote from home,” one fake advertisement reads. “Text ‘Hillary’ to 59925.”
Mackey was found guilty under the “Conspiracy Against Rights” act — a federal statute that became known as the “Ku Klux Klan Act” as it was used to protect emancipated Black Americans from Klansmen trying to prevent them from voting. But the statute is not limited to Klansmen and Mackey was convicted under the law for seeking to stop Clinton voters from exercising their constitutional right to vote.
Arguing on behalf of Mackey, Jacob Roth of Jones Day said Mackey was wrongfully prosecuted under the statute for disseminating political misinformation and claimed the law doesn’t cover “deceptive, private speech about voting.”
“This statute has been on the books for 150 years and everybody in the case agrees that political misinformation including misinformation about how to vote, where to vote, when to vote is ubiquitous in election campaigns,” Jacob Roth, an attorney with Jones Day representing Mackey, said Friday. “And yet there are no precedents that have applied this statute to that sort of speech.”
During trial, prosecutors pointed to several private direct message groups on X, formerly Twitter, of which Mackey was a member where he discussed and agreed with others on how to disseminate messages intended to deceive voters in the 2016 presidential election.
In these plans, the group specifically agreed on a plan to distribute a series of images intended to look like official announcements from the Hillary Clinton campaign advising supporters they could cast a valid vote by including a particular hashtag on a social media post or sending an SMS text message to a number provided on the images.
Roth said that these acts of deception shouldn’t be prosecuted under the “Ku Klux Klan” statute because Mackey and his conspirators did not directly bar Clinton supporters from voting.
“Would a reasonable, private actor know that he’s violating someone’s constitutional rights by misdirecting their vote?” U.S. Circuit Judge Debra A. Livingston, a George W. Bush appointee, asked Roth.
Roth said no and added that he thought deception is unequivocally different from what the statute intended.
“When the statute was enacted, it was about physical acts of coercion. Then, it was extended … to ballot manipulation, destroying ballots, stuffing the ballot box,” Roth said. “But deception is just different from those wrongs.”
But Assistant U.S. Attorney Erik Paulsen said that Mackey clearly intended to prevent Clinton voters from being represented in the 2016 election.
“These defendants wanted these votes to drop into an internet black hole,” Paulsen said Friday. “They wanted these people to think they had voted and had the vote disappear.”
Roth also argued that the Eastern District of New York lacked the jurisdiction to prosecute the case based on what he called the “pass through theory.”
“Which is the idea that Mr. Mackey tweeted in Manhattan, the internet data crossed through Brooklyn … that is an incredibly broad theory, a venue that would effectively allow prosecution of many internet related offenses almost anywhere in the country,” Roth said.
But Paulsen said the “pass through theory” was sufficient to establish jurisdiction in Brooklyn and pointed to evidence of various text messages from individuals under the jurisdiction of the Eastern District of New York who responded to Mackey’s phony advertisements.
Paulsen also pointed to Clinton campaign workers based in the Eastern District of New York who warned the company that owned the provided text code about the scheme after observing the fraudulent advertisements.
“We proved the ‘pass through’ that it went through EDNY definitively, we proved that individuals saw these exact memes with the same text codes right across the courthouse from where we were doing this,” Paulsen said.
Arguments took place after a New York City earthquake shook the courtroom and caused a pause in proceedings as the Second Circuit panel awaited for an ‘all clear’ to resume oral arguments. After a slight delay, the arguments resumed as scheduled.
U.S. Circuit Judge Reena Raggi, appointed by George W. Bush, and U.S. Circuit Judge Beth Robinson, a Joe Biden appointee, also joined the panel.
Neither party's attorneys responded to a request for comment.
Follow @NikaSchoonover
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