Michigan Narrows Election-Interference Statute to Intentional Falsehoods About Voting Requirements or Procedures; Denial of Leave Leaves “Vote-by-Mail” as a Covered Procedure

Introduction

This commentary analyzes the Michigan Supreme Court’s June 27, 2025 order in People of the State of Michigan v. John MacAuley Burkman and People of the State of Michigan v. Jacob Alexander Wohl, denying leave to appeal from a December 13, 2024 Court of Appeals decision on remand. The dispute arises from pre–2020 election robocalls disseminated in predominantly African American communities warning of alleged negative consequences of voting by mail. Prosecutors charged defendants under MCL 168.932(a), Michigan’s election-interference statute that prohibits deterring an elector “by menace, or other corrupt means or device.”

In 2024, the Michigan Supreme Court saved the statute’s catchall phrase from overbreadth by adopting a limiting construction: the “other corrupt means or device” prohibition applies only to intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote. On remand, a Court of Appeals majority held that “voting by mail” is a voting procedure and that the robocalls’ messaging was related to that procedure, while a dissent read the limiting construction more narrowly. The 2025 order denies further review, leaving the Court of Appeals’ application intact. Justice Zahra dissented from the denial, urging clarification of what “related to voting requirements or procedures” means and warning of constitutional risks if the phrase sweeps too broadly.

Summary of the Opinion

The Court’s order denies defendants’ applications for leave to appeal without elaboration, stating only that the Court is “not persuaded that the questions presented should be reviewed.” The denial leaves in place the Court of Appeals’ (on-remand) judgment applying the Michigan Supreme Court’s 2024 limiting construction to MCL 168.932(a).

Justice Zahra dissented. He explained:

• The Court’s 2024 limiting construction—restricting liability to “intentionally false speech that is related to voting requirements or procedures” made to deter or influence voting—has produced divergent lower-court interpretations, particularly on what counts as “related to voting requirements or procedures.”
• The Court of Appeals’ majority concluded that “voting by mail” is a voting procedure and that speech about purported negative consequences of choosing that method is “related” to that procedure; Judge Redford dissented, reading “procedures” to mean the mechanics of voting and viewing the robocall as addressing secondary consequences, not the mechanics themselves.
• The phrase “voting requirements and procedures” appears to have been drawn from a U.S. Supreme Court footnote in Minnesota Voters Alliance v Mansky, where the context was confusion over photo-identification requirements at the polling place—a direct matter of voting mechanics. Justice Zahra suggested that, if the Michigan Supreme Court intended to anchor its limitation to Mansky, a narrower reading focused on mechanics would be appropriate.
• Given the constitutional stakes and the Court’s role in crafting the limiting language, he urged the Court to grant leave to clarify the standard rather than risk chilling protected political speech or inviting federal review.

Factual and Procedural Background

Before the 2020 general election, defendants caused a robocall to be disseminated in communities with predominantly African American populations, including in Michigan. The message stated in part:

“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