The benefits of incumbency cannot be overstated in a U.S. election. Incumbents are returned to the U.S. House of Representatives over 90% of the time. The incumbent benefits from name recognition, the use of government resources in elections (e.g. franking privilege to send free postage), and better access to campaign financing resources. The appeal of incumbency is so strong that some candidates may even attempt to claim or imply that they are the existing incumbent for a political office to secure votes. However, this strategy is prohibited under Michigan law and can lead to fines, probation and even incarceration.
MCL 168.944 states “[a]ny person who advertises or uses in any campaign material, including radio, television, newspapers, circulars, cards, or stationery, the words incumbent, re-elect, re-election, or otherwise indicates, represents, or gives the impression that a candidate for public office is the incumbent, when in fact the candidate is not the incumbent, is guilty of a misdemeanor…”.
Any person convicted of false designation of a misdemeanor can be sentenced to a fine up to $500.00 or up to 90 days in jail, or both. MCL 168.934. The wording “otherwise indicates, represents, or gives the impression that a candidate for public office is the incumbent” is a slippery slope and presents an opportunity that someone can be prosecuted for even a misunderstanding of the language on campaign literature. This is exactly what happened during a Michigan election in 2018.
Anuja Rajendra, a businesswoman and CEO of Bollyfit in Ann Arbor, was running for the 18th District Michigan Senate seat during the 2018 election cycle. She lost her bid by placing third place in a four-way race in the August primary election. However, she also found herself charged with two counts of violating MCL 168.944 by local prosecutors due to the following language on her campaign literature:
- On one mailer, the first sentence stated: “As your State Senator, I’m steadfast in my commitment to…”.
- On another mailer, there was a sentence that stated: “As a mom of four and as your State Senator, I want my kids and all kids in Michigan to have the same opportunity for quality education and success.”
Local prosecutors claimed that the campaign language gave the impression to voters that Ms. Rajendra was already a sitting state senator. The American Civil Liberties Union came to her defense and filed a Motion to Dismiss Criminal Complaint Pursuant To The First Amendment Of The U.S. Constitution in the 15th District Court of Washtenaw County. They alleged that MCL 168.944 was unconstitutional because of the following:
- MCL 168.944 violates the First Amendment because it is a content-based restriction on political speech that is not narrowly tailored to serve a compelling government interest.
- MCL 168.944 violates the First Amendment and due process because it does not give adequate notice of the conduct that it is intended to criminalize and encourages arbitrary and discriminatory enforcement.
- MCL 168.944 violates the First Amendment as applied to Ms. Rajendra’s conduct because it criminalized her political speech that was not false.
This was Ms. Rajendra’s first campaign for any political office so the general content of “her message was one of a political outsider and a new voice.” In the context of her entire campaign, she made it clear that she was a newcomer with fresh views in an attempt to distinguish herself from the other candidates. In addition, the disputed campaign literature does not explicitly say that Ms. Rajendra was a sitting state senator, but rather indicated what positions she would take “as your State Senator”. While the plain language could be interpreted as an attempt to misrepresent incumbency, this reading just doesn’t make sense against the message of her campaign as a whole.
Judge Hines agreed and ruled that MCL 168.944 violates the First Amendment as an unconstitutional infringement of free speech. Her nine-minute ruling was followed by applause in the courtroom. Prosecutors have declined to appeal this decision.
Despite the judicial decision, MCL 168.944 remains in Michigan’s Complied Laws. State Senator Jeff Irwin (the winner of the 18th District seat in 2018) introduced Senate Bill 458 in 2019 to formally repeal this statute and prevent another situation like Ms. Rajendra’s dilemma from happening again. This bill has not yet been signed into law and remains pending in a senate committee. This means that candidates who want to employ the strategy of misrepresenting or falsely implying incumbency should do so at their own risk. Election officials are required to report these violations to law enforcement for follow-up.
If you have any questions about Michigan election law or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.