Esenburg: Why WRTL cannot be charged

What I was concerned with is whether WRTL could be said to have given out these gift cards (or, if you prefer, offered the gift cards) to an elector or any other person as an inducement to get an elector to vote or refrain from voting.

The problem that I see with application of the statute to WRTL is that the gift cards were offered or given not as an inducement to vote but as an inducement for people to get others to apply for absentee ballots. Even if we can characterize the latter as trying to get people to vote, this is a huge distinction. Here's why.

Tom wants to read the statute to say that it is unlawful to offer a thing of value to a person in order to induce that person to persuade another to vote. This is not what the law says. In fact, if we were read the statute in the way that Mr. Foley wants, it would apply to any compensated "get out the vote" effort. If a political party or a candidate or even the League of Women Voters pays people to encourage or facilitate voting, they will have violated the statute. Not only is that a nonsensical reading of the statute (the law can be an ass but it usually isn't), it is a reading that would place it in dire constitutional jeopardy. The freedom of association involves, I think, the right to organize to get out the vote including paying the organizers.

the whole thing at Shark and Shepard