Refining Electoral Speech Crimes: The Michigan Supreme Court’s Narrow Construction of MCL 168.932(a) and Its Unsettled First-Amendment Boundaries

1. Introduction

The consolidated matters of People of the State of Michigan v. John Macauley Burkman and People of the State of Michigan v. Jacob Alexander Wohl have travelled an unusually complex procedural path. The defendants, political operatives, disseminated a nationwide robocall targeting predominantly African-American communities before the 2020 general election. The message falsely warned that voting by mail would expose voters to warrant enforcement, debt collection, and mandatory vaccination surveillance.

Prosecutors charged them under MCL 168.932(a), a century-old Michigan election-integrity statute that criminalises attempts, “by menace, or other corrupt means or device,” to deter an elector from voting. Although the district court bound them over for trial and the Court of Appeals initially affirmed, the Michigan Supreme Court (513 Mich 300, 2024) found the phrase “other corrupt means or device” facially overbroad under the First Amendment. Rather than strike the language, the Court adopted a “limiting construction,” holding that the statute only reaches:

“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, the Court of Appeals split over how broadly “related to voting requirements or procedures” should be read. In the Order of 27 June 2025 now under commentary, the Supreme Court denied further review, leaving the divided Court of Appeals opinion intact. Justice Brian K. Zahra dissented, warning that the Court’s earlier saving construction still chills protected political speech and demands clarification.

2. Summary of the Judgment

• Majority action (per curiam): Applications for leave to appeal the Court of Appeals’ December 13 2024 judgment are denied. No opinion accompanies the denial.
• Dissent (Zahra, J.): Argues the Court should grant leave to clarify the scope of its own limiting construction, contending that the phrase “related to voting requirements or procedures” is too malleable and risks criminalising constitutionally protected speech. He aligns with the Court of Appeals dissent (Redford, J.) which would interpret “procedures” narrowly—i.e., mechanics of casting a ballot—rather than encompass speculative or collateral consequences of using a procedure (e.g., mail-in voting leading to data-collection abuse).

3. Analysis

3.1 Precedents Cited and Their Influence

People v. Burkman, 513 Mich 300 (2024) – The key precedent: the Court’s “limiting construction” salvaged MCL 168.932(a) by equating “other corrupt means or device” with intentionally false, vote-related speech.
Minnesota Voters Alliance v. Mansky, 585 U.S. __ (2018) – Footnote cited for the phrase “related to voting requirements or procedures,” used to describe “Please I.D. Me” buttons worn inside polling places. Zahra, J., notes that the original context involved speech inside a polling place, directly addressing identification rules—far narrower than the robocall at issue.
First-Amendment “false speech” line of cases (United States v. Alvarez, 567 U.S. 709 (2012); Garrison v. Louisiana, 379 U.S. 64 (1964)) – Implicitly inform the Court’s requirement that prohibited speech be intentionally false and cause electoral harm.
Michigan electoral-fraud jurisprudence (People v. Pinkney, 501 Mich 259 (2018)) – Previously recognised the state’s compelling interest in preventing voter intimidation and fraud, but Pinkney did not confront overbreadth.

3.2 Legal Reasoning of the Dissent

Justice Zahra’s dissent proceeds in three analytical steps:

Ambiguity Created by the Saving Construction. The expression “related to voting requirements or procedures” potentially covers any discourse about voting. Without a limiting principle distinguishing “mechanics of voting” from “downstream consequences,” prosecutors have broad discretion.
Risk of Chilling Political Speech. The majority’s silence effectively leaves campaign speech—especially robust, negative, or sensational messaging—under a cloud of criminal prosecution if any part is arguably false and connected to the act of voting. This is antithetical to core political-speech protections.
Need for Supreme Court Clarification. Because the earlier construction was crafted by the Michigan Supreme Court, responsibility for clarifying it rests with the Court, else the U.S. Supreme Court may eventually intervene.

3.3 Impact on Future Litigation and Statutory Interpretation

1. Short-term Litigation Landscape. Trial courts now apply an uncertain test: Was the defendant’s speech “intentionally false;” was it “related to voting requirements or procedures;” and was it made to deter or influence a vote? The breadth of “related to” invites inconsistent rulings and forum-shopping.

2. Prosecutorial Discretion. Prosecutors in election-integrity units might take an expansive view (as did the Attorney General here), emboldened by the Court of Appeals majority. Defense counsel will cite Zahra’s dissent to argue for dismissal or narrow jury instructions.

3. Legislative Response. The Michigan Legislature may amend MCL 168.932(a) to codify a clearer, objective definition—e.g., limiting criminal liability to knowingly false statements about ballot-access or identification requirements.

4. National Repercussions. Other states with similar “corrupt means” clauses (e.g., Ohio Rev. Code §3517.21) might look to Michigan’s experience when defending or revising those statutes.

5. First-Amendment Doctrine. The case tests the outer edge of the Supreme Court’s tolerance for content-based restrictions on false political speech. Should federal review ensue, the U.S. Supreme Court may address whether Alvarez’s plurality protection for false speech applies where the state demonstrates actual, imminent harms to voting rights.

4. Complex Concepts Simplified

Overbreadth Doctrine: A First-Amendment principle allowing a law to be struck down if it punishes a substantial amount of protected speech relative to its plainly legitimate sweep.
Limiting Construction: A judicial technique that narrows statutory language to avoid unconstitutional applications, thereby preserving the statute instead of invalidating it.
Menace vs. Other Corrupt Means: In MCL 168.932(a), “menace” covers threats of violence or harm. “Other corrupt means or device” is a catch-all the Court has now limited to intentionally false, vote-related speech.
Intentionally False Speech: Statements made with knowledge of their falsity or reckless disregard for truth—higher culpability than mere negligence.
Voting Requirements vs. Voting Procedures: Requirements usually refer to legal prerequisites (e.g., ID, registration deadlines); procedures refer to the methods of casting or counting ballots (e.g., mail-in, absentee, in-person). The current controversy is whether secondary consequences of using a procedure (like data-collection fears) fall within the term.

5. Conclusion

The June 27 2025 order is procedurally terse yet doctrinally significant. By declining review, the Michigan Supreme Court has—at least temporarily—endorsed a capacious reading of its own 2024 limiting construction of MCL 168.932(a). Justice Zahra’s dissent highlights the tension between combating voter suppression through misinformation and protecting vigorous, even caustic, political speech.

The core takeaway is that Michigan now criminalises intentionally false speech that is related to voting requirements or procedures and designed to deter or influence voting, but the precise compass of “related to” remains undefined. Trial courts, prosecutors, and political actors must navigate this grey zone until either the legislature intervenes or higher judicial clarification arrives—potentially from the U.S. Supreme Court. In the interim, the decision stands as both a cautionary marker against deceptive electoral tactics and a reminder of the delicate balance between election integrity and First Amendment freedoms.