Charging Legislative Candidate Duane Sand With a Crime for Making a False Statement in a Political Ad Is a Travesty

Earlier this year Duane Sand, who ran for both the U.S. House and Senate on behalf of the NDGOP in previous cycles and once gave me one of the most colorful comments I’ve ever received in my political writing career, challenged two incumbent Republican lawmakers in the District 47 (Bismarck) House race.

I’m a believer in that sort of intra-party competition. It’s healthy for incumbents, particularly incumbents who have been in office for a while, to be challenged. And it’s pretty clear that, in most of North Dakota, Democrats aren’t providing much of a challenge.

Anyway, during the course of Sand’s campaign he ran an ad saying incumbent state Rep. George Keiser voted no on legislation which would have capped the dollar amount impact of property taxes. But, as it turns out, Keiser did actually support that legislation. He missed the initial vote on it, but supported it later.

Sand, to his credit, ran a second ad acknowledging his error and apologizing for it. Still, Keiser took the issue to law enforcement saying Sand violated section 16.1-10-04 of the North Dakota Century Code:

Law enforcement has investigated the matter, and now per the Bismarck Tribune the local prosecutor has decided to charge Sand:

Burleigh County State’s Attorney Karlei Neufeld, who is prosecuting the case, said a criminal charge was filed because her office believes “that the acts fit the elements of the defense.”

“This case was treated just like any other case we received, so our office received the case from law enforcement, we then reviewed the facts and then we determined that the facts fit the elements of the defense. And then based on that criminal charges were filed,” Neufeld said.

Do the facts really fit?

The law says it’s a crime to “knowingly” publish false information or have “reckless disregard” for the truth. Given that Sand corrected himself, and took out an ad acknowledging the correction and apologizing for it, can it really be proved that knowingly published something that was false with reckless disregard?

How is the prosecutor going to prove that this was a conscious effort to mislead the public as opposed to a mistake?

But even if Sand did, with nefarious purpose, publish something that was false is a courtroom really the best place to settle that matter?

I think these matters ought to be left up to the voters, not judges and lawyers.

A law in another state similar to the one Sand is charged with breaking have been reviewed by the courts and struck down. Susan B. Anthony List v. Driehaus was a case concerning an Ohio law which made it illegal to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate…if the statement is designed to promote the election, nomination, or defeat of the candidate.”

It involved the group, SBA List, running an ad stating that a Democratic congressional candidate had voted for taxpayer funded abortions, a claim the candidate said was false.

The case went to the U.S. Supreme Court where SAB List won, and ultimately the state law was struck down in district court. “We do not want the government (i.e., the Ohio Elections Commission) deciding what is political truth — for fear that the government might persecute those who criticize it,” Judge Timothy Black wrote in his opinion. “Instead, in a democracy, the voters should decide.”

I think that’s exactly right.

Keiser filing a criminal complaint against Sand over this issue does not reflect well on his character. Local prosecutors turning that complaint into criminal charges does not speak well for their judgment.

I hope Sand fights this charge. That’s his decision to make, and it’s understandable if he doesn’t want the headache, but this law is worth challenging.