By MDBayNews Staff
The Maryland State Board of Elections is facing renewed scrutiny after a February 6 press release from State Administrator Jared DeMarinis that critics say steps beyond voter education and into constitutionally questionable territory.
In the statement, DeMarinis sought to “correct” what he labeled misinformation or disinformation surrounding claims about the potential “nationalization of elections” and the presence of federal enforcement agents near polling places. While framed as reassurance, the language raises serious First Amendment concerns—particularly when a government agency positions itself as the arbiter of what political speech is permissible or trustworthy. MD_State_Administrator_of_Elect…
When Government “Correction” Becomes Speech Policing
At issue is not whether Maryland runs its own elections—an uncontested constitutional fact—but whether a state agency should be issuing warnings about political speech that it fears may “take hold.”
The First Amendment does not grant government agencies authority to preemptively label political arguments as misinformation simply because they are uncomfortable, speculative, or controversial. Political speech—especially speech critical of government power—is afforded the highest level of constitutional protection.
The press release repeatedly urges voters to distrust “statements” and instead rely only on the Maryland State Board of Elections as the “trusted source of electoral information.” That framing is problematic. A free society does not require citizens to filter political debate through an official state source.
The Supreme Court has been clear: the remedy for disputed speech is more speech, not official suppression or delegitimization.
Chilling Effect on Lawful Political Debate
By warning that certain claims may cause “apprehension or anxiety” in communities, the state risks creating a chilling effect—discouraging citizens, journalists, and activists from raising legitimate questions about federal involvement, election security, or executive authority.
Concerns about federal law enforcement near polling locations, for example, are not inherently false or illegitimate. They have been raised by civil liberties groups across the political spectrum for decades. Labeling such concerns as “noise” or implied disinformation undermines lawful debate and invites selective enforcement of speech norms.
Even well-intentioned messaging can cross a constitutional line when it implicitly discourages citizens from expressing dissenting political views.
The Irony of Invoking Liberty While Restricting Speech
Ironically, the statement invokes Maryland’s Declaration of Rights and the “foundation of all free Government,” while simultaneously narrowing the range of acceptable public discussion.
Free elections depend not just on access to ballots, but on open debate—messy, contentious, and sometimes uncomfortable debate—about how those elections are conducted and protected.
A government confident in its processes does not need to caution voters against hearing alternative viewpoints. It responds to criticism transparently and allows the public to judge competing claims on their merits.
Why This Matters Going Into 2026
With the 2026 election cycle approaching, trust in election administration will depend less on press releases and more on restraint.
When state officials take it upon themselves to label political narratives as misinformation, they risk politicizing their own office—and eroding the very confidence they claim to protect.
Marylanders deserve accurate information. They also deserve the constitutional freedom to question those in power without being subtly warned off by the state itself.
In a democracy, the government does not get to decide which political conversations are acceptable. That right belongs to the people.
Legal Context: Why Government “Disinformation” Policing Raises First Amendment Red Flags
The First Amendment sharply limits the government’s role in regulating political speech—especially when the speech concerns elections, government power, or public policy.
Several core Supreme Court principles are implicated when a state agency publicly labels political viewpoints as “misinformation” or urges citizens to rely only on official government sources:
1. Government Cannot Act as the Arbiter of Political Truth
In United States v. Alvarez (2012), the Supreme Court held that even false statements are protected speech unless they fall into narrow, historically recognized exceptions (such as fraud or defamation). The Court explicitly rejected the idea that the government may criminalize or suppress speech simply because it deems it false.
“The remedy for speech that is false is speech that is true.” — Alvarez
2. Political Speech Receives the Highest Constitutional Protection
In McIntyre v. Ohio Elections Commission (1995), the Court emphasized that political speech—particularly speech about elections and government authority—lies at the core of the First Amendment. State actions that discourage or chill such speech face the most exacting scrutiny.
3. Chilling Effects Can Violate the First Amendment Without Formal Censorship
In Bantam Books v. Sullivan (1963), the Court ruled that informal government pressure—such as warnings, advisories, or “guidance” suggesting certain speech is improper—can violate the First Amendment even without formal bans or penalties.
Government messaging that implicitly discourages discussion by labeling viewpoints as “disinformation” risks crossing this line.
4. Viewpoint Discrimination Is Presumptively Unconstitutional
Under cases such as Rosenberger v. University of Virginia (1995), the government may not favor certain viewpoints over others in public discourse. Encouraging voters to trust only official sources while casting alternative political narratives as suspect raises concerns of viewpoint discrimination.
Bottom line:
While states may provide factual information about election procedures, the First Amendment does not permit government agencies to delegitimize political debate, discourage dissenting viewpoints, or position themselves as the sole authority on acceptable election-related speech.
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