by Max Brantley
A Blog reader complains about receiving a robocall from Mike Huckabee (or at least somebody who identified himself as Gov. Mike Huckabee) in support of Rhonda Wood, who's challenging the re-election of incumbent Court of Appeals Judge Jo Hart. In it, he injects partisan politics in what's, in theory, a non-partisan office. I'm actually surprised that overt partisan labeling hasn't become more prevalent in judicial races. That R label comforts a certain voter segment (presumably those targeted by the calls) in races where candidates aren't able to say much.
Her recording of the call:
"Hi, this is Gov. Mike Huckabee and I'm calling to ask you to vote for Judge Rhonda Wood for the Arkansas Court of Appeals on May the 18th. I appointed Judge Rhonda Wood to the Circuit Bench in 2006 and she was later elected for a six year term. Judge Rhonda Wood has been selected by the Republican Party of Arkansas as their preferred candidate in this race. Please vote for Judge Rhonda Wood."
The reader says she intends to complain on account of a state law (5-63-204) that would appear to prohibit automated political calls. But the prevailing sentiment seems to be that federal law overrides the state statute.
HOWEVER: Some preliminary research clouds this issue. Political calls are indeed exempt from the federal Do Not Call Registry, but the Arkansas ban is unrelated to that. Also, a challenge to a Minnesota state robocall ban on constitutional grounds failed at the 8th Circuit Court of Appeals some years ago. Perhaps if the threatened complaint on this call goes forward, we might get some clarity on the issue. Perhaps Attorney General McDaniel would issue a formal opinion on robocalling by state candidates. Unless maybe he has plans to do some robocalling someday himself.
UPDATE: Rhonda Wood has issued a curiously evasive statement to the Batesville Guard, which quoted the Baxter County prosecutor as saying such calls were "inappropriate" on account of the state law. Rather than disavow knowledge or connection to the calls, Woods' statement draws an unspecified distinction between "robo" and "automated" calling and adds the eye-raising assertion that many people, including state legislators!, believe the Arkansas law is unconstitutional (she needs to read that 1995 8th Circuit opinion) and ignore it. A judge who thinks a law may be ignored based on personal opinions has provided circumstantial evidence about fitness to serve. Judges are prohibited from partisan associations, so it also doesn't serve her well that she hasn't distanced herself from any connection to the call.
THE STATE STATUTE SAYS IN PART
5-63-204. Automated telephone solicitation.
(a) (1) It is unlawful for any person to use a telephone for the purpose of offering any
goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase of the goods or services, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when the use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the called number.
ONE CASE ON POINT
United States Court of Appeals,
Submitted March 15, 1995.
Decided July 14, 1995.
Daryl J. Bergmann, Bloomington, MN (argued), for appellant.
Peter Martin Ackerberg, Asst. Atty. Gen., St. Paul, MN (argued), for appellee.
Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
MAGILL, Circuit Judge.
Richard Van Bergen appeals the district court's1 dismissal of his request for a permanent injunction and declaratory relief against the enforcement of Minn.Stat. Secs. 325E.26-.31, which regulates the use of automatic telephone dialing-announcing devices. In this appeal, Van Bergen argues that the statute violates his rights under the freedom of speech clause of the First Amendment and the due process and equal protection clauses of the Fourteenth Amendment, that the statute is unconstitutionally vague, and that it is preempted by federal law. We affirm.