Complaint filed in election night robocall

Attorney general's office says messages violated Telephone Consumer Protection Act

November 10, 2010|By Justin Fenton, The Baltimore Sun

The state attorney general's office is seeking millions of dollars in fines from a political consultant who sent out an election night "robocall" to thousands of Marylanders suggesting that they "relax" because the race was over, even though polls were still open.

Comparing the calls to literacy tests and poll taxes, Attorney General Douglas F. Gansler said that the calls were made on behalf of former Gov. Robert L. Ehrlich Jr. with the intent of suppressing and intimidating voters in predominantly African-American areas.

"These calls were made not in an attempt to persuade people to vote for one candidate or another, or one party or another," Gansler said at a news conference. "This was with intent to suppress voter turnout. We do not tolerate this type of behavior in Maryland." Gansler, a Democrat, stressed that there was "absolutely no reason" to believe that Ehrlich himself was aware of the calls. Ehrlich has not commented on the incident, which was denounced by his campaign on election night and by both the Democratic and Republican parties.

The complaint, a civil action filed in federal court, alleges that political consultant Julius Henson; his company, Universal Elections; and an employee, Rhonda Russell, violated the Telephone Consumer Protection Act by not identifying who was behind the messages.

The state is seeking $500 for each violation, meaning the potential fine could reach nearly $60 million for each defendant.

The Sun first tracked the calls last week to a Pennsylvania-based company, which identified Russell as the person who paid for them. Henson later acknowledged in a news conference outside his home that his company was responsible and had made them on behalf of Ehrlich, whose campaign paid Henson's companies nearly $100,000 in the past few months.

In the call, a woman's voice — later determined to be that of Russell — tells voters that "Governor O'Malley and President Obama have been successful. Our goals have been met. The polls were correct and we took it back. We're OK. Relax. The only thing left is to watch it on TV tonight."

Henson could not be reached for comment. Last week, he denied that the calls were intended to suppress turnout, claiming that they were instead intended to spark Ehrlich voters to action.

However, Gansler said that investigators had not identified any Republicans on the list of more than 112,000 people in Baltimore and Prince George's County who received the calls.

Henson did acknowledge, however, that the calls should have identified who made them.

"Listen, I grant you, robocalls often times do not have a tag, and sometimes they do," he said last week. "In retrospect, we should've put a tag on that call."

Gansler said that Henson "willfully" omitted the identification.

Baltimore Mayor Stephanie Rawlings-Blake said in a statement that she hopes Gansler's office and others "determine who is ultimately responsible for this effort to interfere with the voting rights of Baltimore City residents."

Henson has a history of rough-and-tumble campaign tactics.

In the 1998 gubernatorial race, he masterminded an effort to paint Republican nominee Ellen R. Sauerbrey as a racist through fliers and other materials depicting her as an enemy of civil rights. In 2002, Henson was hired by then-Lt. Gov. Kathleen Kennedy Townsend and vowed to portray Ehrlich, her opponent in the governor's race, as a "Nazi" in an effort to win black voters.

The calls on election night may have also violated a relatively new state law covering voter fraud and voter suppression that carries a possible penalty of jail time, but Gansler said his office does not have jurisdiction over pursuing those charges.

Both Henson and Robodial.org, the company that he used to make the calls, said they had been subpoenaed by the state prosecutor's office, which declined to confirm or deny whether an investigation was pending.

The state's attorney's offices from Baltimore and Prince George's County could also investigate, Gansler said.

Philip D. Ziperman, an assistant attorney general, said about 60 percent of the calls went to voters in Prince George's County, with the rest going to voters in Baltimore.

Gansler's office pursued charges last month against a Prince George's County man accused of printing campaign fliers with a fictitious authority line. In that case, Gansler said, the investigation was referred to his office by Prince George's County State's Attorney Glenn Ivey.

"What we hope today's message will be is, 'Play by the rules,'" Gansler said.

While the fine being sought by Gansler's office for the federal violation is hefty, few others facing similar allegations, if any, appear to have had to pay significant penalties, according to news reports.

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