2016 Election Fraudster “Ricky Vaughn” Might Finally Be About to Face the Music
On Friday, a federal appeals court in New York will consider a case with key implications for the 2024 election. At issue is whether it violates federal law to trick people on social media and elsewhere about when, where, or how to vote, and whether such a law is consistent with the First Amendment. A ruling favoring the government would go a long way toward protecting voters.
Back in 2016, a man named Douglass Mackey, tweeting under the name “Ricky Vaughn,” repeatedly directed messages to Black voters encouraging them to vote by text for Hillary Clinton. The intent was to trick these voters out of their franchise; of course, votes sent by text don’t count. Thousands sent texts to vote. We don’t know how many of them later did not attempt to vote in a permissible way.
Mackey was convicted by a jury of violating a Reconstruction-era law, 18 U.S.C. § 241, that made it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” The federal government’s theory was that Mackey conspired with others to deprive voters of their right to vote.
On expedited appeal before the U.S. Court of Appeals for the 2nd Circuit, Mackey concedes that, “at worst,” his tweets containing false information about how to vote “were calculated to cause voters to send futile text messages and then stay home on election day.” But, he argues, Section 241 does not apply to conduct such as his, he was not on fair notice that Section 241 applied to conduct like his, and even if it covered this conduct, Section 241 would apply to so much protected speech that it would violate the First Amendment’s protection for freedom of speech.
In an amicus brief supporting the federal government, Protect Democracy, the Yale Media Freedom and Information Access Clinic, and I take issue with Mackey’s first and third arguments.
Regarding whether Section 241 covers his despicable conduct (which he now defends as “satire”), we explain that, under a Supreme Court case involving a closely related statute, courts must look to the common law of torts to determine what it means to “injure” someone in the enjoyment of their rights. There is case law dating back hundreds of years in England and the United States that treats it as a tort to willfully deprive someone else of the right to vote. Trickery is just one means of depriving someone of their right to vote; other means include violence and threats of violence. This reading, tying Section 241 to the commission of a common-law tort, will go a long way toward ensuring that federal prosecutors are limited in the kinds of election-related activities that could be charged as Section 241 violations, thus muting the overreach issues Mackey claims to be so concerned about.
Regarding whether the statute is unconstitutional, Mackey’s First Amendment argument is weak so long as Section 241 is read to cover only conduct related to voting that would constitute a tort—that is, in the words of the Restatement (Second) of Torts, “the use of tortious force, fraud or duress against either the other or a third person, bribery of a third person or the use of an official position to prevent the exercise of the right” to vote. Indeed, in a 2018 case, Minnesota Voters Alliance v. Mansky, the United States Supreme Court in a First Amendment case recognized, consistent with long-standing tort law, that a “state may prohibit messages intended to mislead voters about voting requirements and procedures.”
Mackey is not arguing that his conduct in tricking voters out of their franchise is itself protected by the First Amendment. Instead, he’s making a special kind of argument that applies in First Amendment cases: He is trying to show that the law is “substantially overbroad,” meaning that applying Section 241 would violate speech rights most of the time. If he can show that, the law violates the Constitution, and he’s off the hook.
Mackey cannot make this showing. After all, there are many tortious actions to disenfranchise that do not implicate speech—battering or falsely imprisoning someone to prevent them from entering a polling place would be covered by Section 241, for example. Applying Section 241 to these actions would not violate the First Amendment. Even when words are part of a tortious course of conduct—for example by assaulting the plaintiff by saying “If you enter the polling place, I will hit you” or defrauding the plaintiff by falsely stating “You may be arrested if you vote because it is illegal to vote unless you’ve paid the poll tax”—such applications of Section 241 to hold this conduct illegal would pose no First Amendment problem because fraud and true threats are not protected by the First Amendment.
Our brief does not weigh in on Mackey’s argument that he lacked fair notice that he was violating Section 241 as properly understood. As Mackey points out, back in 2022, before I had looked into the issue in depth and well after the conduct in question, I opined in the New York Times that it was not clear if Section 241 covered Mackey’s conduct. Having now studied the issue closely, I believe that his conduct does because he committed a common-law tort. If Mackey can prove lack of notice, though, he may get his conviction overturned.
For Mackey, of course, the most important question is whether he will have to serve his seven-month sentence. The far more important question for society, however, is whether courts will read Section 241 as covering new attempts to trick people out of their right to vote. This case can set a major precedent protecting voters.
If the 2nd Circuit agrees with our reading of Section 241, future “Ricky Vaughns” will be on notice that seeking to trick people out of their vote on social media is not only abhorrent. It’s criminal.
