RACINE — A trial date has been set in the case against a man accused of ordering absentee ballots of other people to demonstrate what he saw as election vulnerabilities.
Harry Wait, 69, is charged with two counts of misappropriating identifying information, both felonies, and two counts of election fraud, both misdemeanors.
The defendant was in Racine County Circuit Court on Monday for a status hearing.
A four-day jury trial date was set for March 19, 2024.
First Amendment protects free speech, not election fraud
There has been a delay in the proceedings as the defense sought to have the case dismissed on First Amendment grounds.
Wait readily admits that in July 2022, he used the personal identifying information of Representative Robin Vos, Speaker of the Wisconsin Assembly, and Racine Mayor Cory Mason to order their absentee ballots on myvote.wi.gov electronically.
The defendant was also accused of certifying false information to obtain the ballots, indicating he was homebound and, therefore, unable to access the polls, as one example.
Wait filmed himself taking these actions and posted the video to the internet. He claimed his intent was never to use the ballots to vote. His motive was to demonstrate vulnerabilities in the system.
He further claimed his actions were political speech, protected by the First Amendment on “expressive conduct” grounds. The law defines expressive conduct as actions that intend to convey a particular message to an audience that understands the message.
The burning of the American flag, for example, is protected free speech on the grounds that it is “expressive conduct.”
Judge Robert Repischak denied the motion to dismiss the case, noting the statutes used in the case did not stem from a desire to limit free speech but to combat identity theft and election fraud.
In the written response, the judge noted Wait had the permission of multiple people to use their personal identifying information to order their absentee ballots, which would have achieved his goal.
Wait did not have to use the personal information of Vos and Mason without their permission to prove his point.
While citizens are free to “embarrass, criticize, or humiliate public officials, it is not an unlimited right.”
“The defendant does not have a First Amendment right to use fraud and intentional misrepresentation in pursuit of his goals,” Repischak concluded. “It is the court’s opinion that the defendant did so here.”
In some free speech cases, ordinances have been specifically enacted to limit or prevent “expressive conduct.”
One of the cases both sides quoted was Texas vs. Johnson, in which the United States Supreme Court ruled the Texas law enacted to criminalize flag burning was unconstitutional.
Flag burning was determined to be symbolic of free speech.
Judge Repischak pointed out the statutes Wait is accused of violating were enacted to combat identity theft and election fraud — not to infringe on free speech.
“The statute, as written and applied, does not prevent the defendant from showing the vulnerabilities of the absentee ballot system,” Repischak noted. “He is free to do so, as he allegedly did, by using the identity of others with their permission.”
He continued, “The statute does not punish him for his ‘speech’ rather, it prohibits him from engaging in fraudulent conduct in furtherance of that ‘speech.’”
Examples in law
The First Amendment Encyclopedia provides examples of laws that were enacted to limit “expressive conduct.”
For instance, during the Vietnam War, municipalities adopted laws to prevent the burning of draft cards.
In the 1950s and ’60s, municipalities used the charge of disturbing the peace to avoid demonstrations, sit-ins, freedom rides and other acts of “expressive conduct.”
For more history on “expressive conduct,” visit the First Amendment Encyclopedia article on expressive conduct.
In Racine County Circuit Court on Monday, the defendant’s lawyers indicated there may be a number of motions filed in the future.
A status hearing was set for July 6.
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