Jimmy Kimmel spreads election disinformation by joking Trump supporters should vote late—Biden-Harris admin prosecuted Douglass Mackey for less

"I don't know if you know about this," Kimmel told his audience in studio and on television, "but we have an election coming up on— I feel relaxed about it, I've really been enjoying the week. It's times like these it's important to remember that cannabis is legal in our state," he said as the crowd cheered.

"Vote early, vote early," he said, instructing viewers on when they should cast their ballots, "if you can't vote early, vote on time. If you want to vote for Trump vote late, vote very late. Do your voting on Thursday or maybe Friday. This will be my third time voting against Donald Trump," he said, not clarifying that Election Day is Tuesday, November 5.

Kimmel said he also voted against Trump when he was nominated for Emmy Awards when he helmed reality TV show The Apprentice. Then he spread rumors that if Trump doesn't win the election, he will not concede. "According to a new poll from CNN, only 30% of American voters think if he loses Trump will concede. Oh, what would give them that idea?" Kimmel said, "Of course Trump won't concede if he loses this election, he still hasn't conceded the last election, and already he's claiming Pennsylvania is cheating."

In 2016, Douglass Mackey, under the Twitter handle @TheRickeyVaughn, posted a meme joking that Hillary Clinton supporters should "Avoid the line. Vote from home," along with an instruction to text a vote. For this, he was prosecuted. That prosecution began when Joe Biden and Kamala Harris took office in 2021 and appointed Garland as attorney general. He was sentenced to 7 months in prison for posting a meme.

The meme Douglass Mackey was sentenced to 7 months for posting.

Mackey saw the Kimmel clip and commented on it, saying "Charles Clymer sent out his texts to thousands of actual voters. Jimmy Kimmel told his joke to an audience of millions. The joke meme I sent out didn't even reach more than 100 people until Buzzfeed and Wired reported on it."

Trans activist Charlotte Clymer's Super PAC sent out texts to voters telling them they had already voted even when they hadn't in a voter suppression scheme that Clymer says was regrettable. The texts from "AllVote" read "Records show you voted" and linked to a Pennsylvania state voting information website. The campaign from AllVote was flagged by election officials as a scam.

Kristina Wong also posted a joke in the lead up to the 2016 presidential election, telling Trump supporters to "skip the polls" and text their vote. Wong was not prosecuted by the Department of Justice.

Kristina Wong's post for which she was not prosecuted.

The New York Times reported at the time that this was "the first criminal case in the country involving voter suppression through the spread of disinformation on Twitter." The Department of Justice claimed that the meme was "election interference" though they could provide no evidence that anyone who saw the meme believed it and was deceived into voting by text.

"The complaint," the DOJ said in 2021, "alleges that in 2016, Mackey established an audience on Twitter with approximately 58,000 followers." Jimmy Kimmel has over 1.7 million viewers per episode and his show airs every night. It is consistently one of the highest rated shows in late night. In 2016, there were only about 313 million users on Twitter in total. Kimmel clearly reaches a wider audience than Mackey did during the meme wars of 2016, yet as of Thursday morning, it does not appear that he will be prosecuted for telling a joke that, were it told by a conservative memester in 2016, would be classified as a federal crime.

Mackey's sentence was stayed and he filed an appeal with the Second Circuit, a case which is still pending. Mackey has vowed to take the case to the Supreme Court should he lose the appeal. "This ruling is huge because it means that the appeals court decided that my appeal presents 'substantial' and 'debatable' issues of law that, if resolved in my favor, will result in my conviction being vacated. The prosecution, on the other hand, argued that my appeal was frivolous and that this was a typical election crime case like any other in U.S. history," Mackey said in December 2023.