Prosecuting Vote Suppression by Misinformation

Following the 2016 U.S. presidential election, concerns about the influence of “fake news” proliferated in the media. Questions abounded regarding the affect social media platforms may have had on the electorate. Election Day 2016 had many in the media pondering: “Did Social Media Ruin Election 2016?” and “Facebook’s failure: did fake news and polarized politics get Trump elected?” Two years after the election, social science scholars were still studying the effect of voters’ consumption of fake news stories leading up to November 8. The current fascination in the U.S. regarding fake news and, relatedly, the role of social media as a news-sharing entity, raises a worthwhile question: how do we prevent fake news without infringing on the right to free speech? This paper does not purport to answer this lofty inquiry but, instead, will address a slightly narrower one. Specifically, how should we curb those communications that work to corrupt the voting franchise by means of misleading or deceiving voters? In Part I, this paper will discuss some of the common types of misinformation used to deceive voters. Part II will briefly look at the history of protecting the right to vote in U.S. elections. Part III will examine the efficacy of the current legal framework for prosecuting election suppression efforts. Finally, Part IV will address a potential legislative reform to eliminate the inadequacies of this current framework