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Shouting Fire in a Crowded Democracy: Why We Should Prosecute Election Deniers

The Bolsonaro insurrection of January 2023 joins the Trump insurrection of January 2021 as empirical evidence of the danger of lying about the results of a free and fair election. In the United States and Brazil, aggrieved presidents refused to acknowledge that they had lost reëlection. The losing presidents claimed, without evidence, that their elections had been rigged, and they persisted in those claims even after they were swiftly debunked. The losers’ election lies inspired aggrieved partisans to respond with public violence against their federal institutions in an attempt to negate the will of the voters and the rule of law and keep the election loser in power.

An outgoing president shouting “The election was rigged!” is akin to a malcontent shouting “Fire!” in a crowded theater. And while shouting fire in a non-blazing opera house actually isn’t illegal, certain harmful lies are, and election denial should be among them.

We prosecute people for other lies related to the electoral process. Annette Bosworth, Chad Haber, and Clayton Walker all lied on nominating petitions and faced consequences in court. Our legislators want to clarify that certain lies on petitions seeking ballot access are Class 6 felonies. Genuine voter fraud—lying about one’s identity or about whether one has already cast a ballot—can land perpetrators in prison. All of those lies undermine the election process.

Lies about the election outcome do at least as much damage to election legitimacy as the above infractions. Bosworth, Haber, and Walker faced perjury charges for their harmful lies; so, it seems, should Trump and Bolsonaro and other prominent election deniers.

Ah, an attentive reader may say, but Bosworth, Haber, and Walker were under oath (the petition circulator’s oath). Trump and Bolsonaro and their followers aren’t under oath, so they can’t be charged with perjury for lying about the elections they lost.

But Trump and other elected officials are under oath. They swear to uphold the Constitution. Elections are central to the health and legitimacy of the Constitution. Telling lies that undermine elections undermines the Constitution and violates that oath elected officials swear. Maybe that’s not perjury, but it’s certainly a violation of an oath, a violation for which elected officials ought to be held accountable in a court of law.

Of course, citizens not holding elected office don’t live under oath, so they can keep lying about election results, right?

Naturalized citizens live under oath: to gain citizenship, immigrants swear to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic” and “bear true faith and allegiance to the same”. Perhaps we could argue that all of us natural-born citizens live under tacit version of the same oath; by hanging around in America and enjoying all the pleasures of citizenship in the greatest country in the world, we swear a tacit oath to uphold the Constitution that makes our citizenship and our national greatness possible, and we all deserve some punishment if we engage in an act as gravely harmful to that Constitution as lying about election results.

A tacit oath may be thin grounds on which to prosecute people for certain false statements. Perhaps we could tie penalties for election lies to an explicit oath taken by most American adults, the oath we swear when we register to vote. South Dakota requires citizens who want to vote to declare, under penalty of perjury, that they are American citizens, actually live at the address they give, and are qualified to vote. It should go without saying that when we ask to participate in elections, we agree to play by the rules of elections and accept their outcomes, whether our favored candidates and positions win or lose. But maybe in the insurrectionist 2020s, it needs saying: require every registering voter to swear to accept the results of elections. Any voter who refuses to acknowledge the facts of an election or spreads lies about election results forfeits the right to vote.

I don’t lightly suggest that we should ban any sort of speech. But America and Brazil show that lying about the outcome of an election—specifically, losing candidates’ claiming, in contradiction of all evidence, that they actually won and that the election results are illegitimate—poses a clear and present threat to democracy. The First Amendment should not protect lying about election outcomes any more than it protects obscenity, fighting words, defamation, child pornography, perjury, and other speech that imperils the community.


  1. larry kurtz 2023-01-10 20:39

    Dusty Johnson needs to be held accountable for coddling a would be dictator and building a war chest on the Big Lie, for his failures to support Medicaid, for voting against marriage, for not moving on immigration reform and for his culpability in driving talent from South Dakota. But he certainly knows which side of his bread gets buttered so the extreme white wing of the Republican Party owns him lock, stock and schlock. Johnson went from being a likable moderate to becoming just another tool of the oligarchs who hoard trillions in South Dakota’s banks and trusts because, hey, that’s where the money is.

  2. Donald Pay 2023-01-10 21:08

    It should be printed on the ballot that by casting this ballot the voter accepts the results of the election process, including the results from any election recount taken, and the findings of certification of the election as determined by lawful processes. You can’t vote if you don’t agree. That should also be a requirement for any candidate on the ballot. If you don’t accept the process, don’t run and don’t vote.

  3. ABC 2023-01-10 21:10

    Tired of oligarch licking Republicans ? Trust fund democracy?

    Here’s what we need to do, today—

    The majority here elects or votes for luminaries like Noem and Trump.

    So we, the smart minority, need to quintuple down with smart things. Waiting for the majority to vote for good things, well, it’s called waiting.

    Now! Things. The first Amendment gives us the right to assemble and petition. Two people sipping lemonade is a Party. Why wait to conform to petition requirements.

    The Rs lie and do oligarch serving things all day every day 24 hours a day.

    So we have to create structures of victory and power Now and then we ll change the laws once we have a solid majority. Criticize for 44 more years? Or build greatness in our everyday lives, across the state. Build greatness!

  4. grudznick 2023-01-10 22:45

    grudznick is bringing the rail to the legislatures, and you fellows best bring your game to your mouth when you plan to ride her out of the town. I am just saying, there are a lot of you fellows who seem to be all hat and no cattle.

    You don’t need to have a Health Department multi-million dollar contract to say “I’m just sayin…”

    Eh Bill?

  5. grudznick 2023-01-10 22:58

    Mr. PP had a blogging about this speech the Governor, Ms. Noem, made today. I wish there was a blogging here upon which all the interested people might pile on their bloggings. Perhaps there is no interest here, or the NDS has subsided. Or been cured, by the speech.

  6. Richard Schriever 2023-01-10 23:27

    The Governess is MRS. Noem grudz, no matter how much you fantasize otherwise. Just sayin’.

  7. sx123 2023-01-11 06:18

    That would add a lot of people to the already crowded prison system…

    I’d rather have candidates that win by very large margins, which is unlikely to happen anytime soon. Would take some very special candidates.

    Trust in govt, by a substantial size of the population, is very low. Until that changes, expect more of the same.

    It doesn’t help that two presidents in a row now can’t properly handle top secret docments.

    Washington is a clown show. Hard to not question things.

  8. John 2023-01-11 07:40

    Within hours the Brazilian police arrested more insurrectionists than has the FBI, Homeland Security, and DOJ arrested US folks for the January 6th insurrection AFTER TWO YEARS. The federal government is broken. I almost never agree with the republicans in the US House of Representatives – but would agree to impeach Merrick Garland and Christopher Wray.

  9. Donald Pay 2023-01-11 08:51

    John’s point is correct. We have a justice system that works for the organized criminal element, not for the people.

  10. Mark Anderson 2023-01-11 13:08

    Prosecute Kari Lake? She’s prettier than the Noem, you just couldn’t do it. It’s not even a lie to the faithful, there must be a religious clause somewhere? After all, you can’t prosecute a cake baker for bigotry. Conservative’s like to lie, cheat. Liberals are suckers and conservatives are cheats. Both will go extinct at the rate we are going.

Comments are closed.