In vote swap fight, ACLU loses first round

Americans who worry that a strong showing by the Green Party's Ralph Nader will help put Texas Gov. George W. Bush in the White House continue to swarm "vote exchange" Web sites, even as a federal judge has dealt the "Nader Trader" movement a setback.

The American Civil Liberties Union, after declaring it "would not allow the Internet to become the First Amendment punching bag," lost Round 1 of its battle for individual rights when U.S. Central District Judge Robert Kelleher issued a one-sentence order denying the ACLU's bid for a temporary restraining order against California Secretary of State Bill Jones. It was Jones' threats to prosecute creators of that resulted in the shuttering of that site and another,

"We are disappointed," ACLU staff attorney Peter Eliasberg said. "The court has failed to grapple with the substantive free-speech and free-association issues involved in the closure of Web sites devoted to matching like-minded voters with one another for the purpose of discussing politics and voting strategies."

Jones' actions, Eliasberg said, "could threaten our ability to exercise our constitutionally guaranteed freedoms on the Internet. The issue is not yet settled. We will pursue this case."

Heralded as a new forum for political organizing and participation, the vote-swap sites promote an interstate exchange of pledges between Nader supporters in critical swing states and supporters of Democratic candidate Al Gore in Republican and Democratic strongholds. The strategy is designed to help Gore win the Electoral College while at the same time helping Nader's Green Party achieve its goal of getting 5% of the popular vote, the threshold required to qualify for federal matching campaign funds in 2004.

Several sites that advocate the strategy -- and, in some cases, succeed in matching voters in different states -- have been created recently, apparently inspiring thousands of people to exchange pledges. But Jones' office sent a chill through that practice when it warned Voteswap2000's founders that their operation violated California's election code, which prohibits offering payment or any other "valuable consideration" to people to influence their votes.

In this case, William Wood, Jones' chief counsel, said the "valuable consideration" is the pledged quid pro quo. Even such promises exchanged between spouses would be illegal, he said. Moreover, Wood said, Web operations are especially vulnerable to exploitation of well-meaning voters.

ACLU attorneys, for their part, argue that the law either is not applicable or is unconstitutional. "Bill Jones seems to be afraid of the Internet and the powers of expression and association that it gives to people," Eliasberg declared in a press release. "That power of combining immediate association and direct speech is the reason people have sought to regulate the Internet more strictly than other media.

"The ACLU will not allow the Internet to become the First Amendment punching bag, to become the one medium in which we allow the government to act out its habitual suspicion of public free speech and free association," Eliasberg said.

While Voteswap2000 is now defunct, another California-based site that matches voters,, says it has yet to hear any complaints from state election officers. And seems to have passed Wood's legal muster. He said his analysis of that site concluded that it operates within the letter of the law.

Nevertheless, election officers in other states have followed Jones' lead, issuing

cease-and-desist letters to various vote-swapping sites. Jeff Cardille, who created in Wisconsin, says he was surprised to receive such an e-mail from Oregon's secretary of state. He said his site promotes the vote-swapping strategy, but does not match voters, instead urging them to personally contact family and friends in order to swap pledges.

Cardille says that after a lawyer friend spoke to the Oregon authorities, they took a closer look at his site and said, in essence, never mind. The Nader Trader advocate says his site has recorded more than 650,000 visits since Oct. 24.

Meanwhile, in Massachusetts, the state attorney general's yesterday won a court injunction to shut down, a Web site that had been offering to auction ballots to the highest bidder.

This story, "In vote swap fight, ACLU loses first round" was originally published by The Industry Standard.

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