American Bar Association
Forum on Communications Law
The First Amendment, the California Secretary of State, and Nader Trader Websites
Deborah J. Matties
Now that the 2000 presidential election has finally been decided, attention may shift from Florida to California, where state action against vote-trading Internet websites promises to be a particularly important First Amendment battleground.
During the presidential campaign, many supporters of Vice President Al Gore worried that the rising popularity of third party candidate Ralph Nader would siphon votes from Gore and hand the presidency over to George W. Bush. Partly in response to James Raskin's article that appeared in the online magazine Slate on October 24, 2000, several so-called Nader Trader sites popped up during October 2000. Using such catchy names such as voteswap.com or votexchange2000. com, they tried to increase the number of votes for Green Party candidate Nader (in order to secure federal funding for 2004 for the Green Party) while keeping George W. Bush out of the White House.
The mechanisms among the sites varied, but they usually had an interactive component that allowed the visitor to submit demographic information and presidential voting intention. If the visitor lived in a swing state and wanted to vote for Nader, the system searched for another visitor who lived in a "safe" state and wanted to vote for Gore. The site sent both visitors an e-mail that informed them of each other's e-mail address and encouraged them to discuss their voting preferences in the upcoming presidential election.1
The Nader Trader sites also contained political content and links to other campaign and political sites. They explained how the Electoral College works and made projections regarding how electors from certain states would vote based on current polling data. Whether visitors signed up to be matched with other voters or actually had made a pledge with other voters, they were confronted with information about the impact of their votes in the presidential election.
California Shuts Down the Sites
Approximately one week before Election Day, as the number of daily visits to the Nader Trader sites was increasing exponentially, California Secretary of State Bill Jones sent the following letter to the operators of voteswap.com:
Your website specifically offers to broker the exchange of votes throughout the United States of America. This activity is a corruption of the voting process in violation of the Elections Code sections 18521 and 18522 as well as Penal Code section 182, criminal conspiracy. . . . As the Chief Elections Officer of the State of California, I demand that you end this activity immediately. If you continue, you and anyone knowingly working with you may be criminally prosecuted to the fullest extent of the law.2
After voteswap.com received the letter, its operators and those of votexchange2000.com and several other similar sites shut down their sites' operational features. Visitors to votexchange2000.com were greeted with the message, "We have been forced to shut our service down. Click here to read why," which led to the following explanation:
We're sorry, but we have had to disable the operative part of the website under threat of prosecution from the state of California. While we are all in favor of changing the way the electoral process works, we are certainly not in the business of breaking the law.
A few days later but still before the election, the American Civil Liberties Union of Southern California (along with the plaintiffs, the operators of votexchange2000.com) filed a complaint and ex parte application for a temporary restraining order in the U.S. District Court for the Central District of California.3 In essence, the complaint alleged that the secretary of state's action amounted to a prior restraint on speech, and asked the court to restrain the secretary's threat of prosecution so that the operators of Nader Trader sites could make their sites operational again.
Political Speech and the First Amendment
The ACLU argued that the Nader Trader sites contain only pure political speech, and that such speech, when found on the Internet, is entitled to the most stringent constitutional protection under the First Amendment and the Supreme Court's decision in Reno v. ACLU.4 The plaintiffs also argued that the pledges to vote made as a result of participation on Nader Trader sites also were pure political speech because the promises made by alleged voters are unverifiable and unenforceable, and therefore, merely hortatory.
The court allowed the defendant to file an opposition before ruling. In his legal response, the secretary of state failed to address the ACLU's First Amendment arguments. Instead, he argued that he had no desire to interfere with "expressive activities" on the Internet, but that he objected to the specific activity of bartering, exchanging, or swapping votes. The secretary of state argued that he merely expressed his legal opinion to the persons operating voteswap.com, whom he believed were engaged in that activity.
The secretary of state noted his lack of authority to prosecute offenders of laws, but claimed to be empowered to investigate possible illegal conduct (in this case, in response to complaints), to opine as to the legality of actions taken in the state, and to make referrals to state prosecutors. The secretary of state, although acknowledging that he had written the operators of voteswap2000. com in response to complaints about that website, argued that his office had received no complaints about the plaintiffs and that he had sent no letter to the operators of votexchange2000.com regarding possible illegal activity. In contrast, he argued, he did review another site, winwincampaign.org, on the basis of a complaint. Because he did not find that winwincampaign.org was offering to broker the sale or trade of votes, he did not send a cease-and-desist letter to its operators.
The plaintiffs objected in their reply brief that the standard for a prior restraint of speech was met, despite the secretary of state's lack of direct authority to bring legal action against the operators of Nader Trader websites. Moreover, the operators of the plaintiff website, although they had not received a cease-and-desist letter, were engaged in an activity almost identical to that of the operators of the site that was targeted by the secretary of state. Thus, they felt the same threat of prosecution as did the operators of voteswap.com.
The day before the election, the district court denied the application for a temporary restraining order without comment.
Whither Vote Trading?
Since Election Day, the plaintiffs have amended their complaint to add claims under the "dormant" Commerce Clause and under the Equal Protection Clause, and they have amended their requested relief by seeking monetary damages. The case remains pending in the Central District of California.
The opposition of the secretary of state and the summary decision of the district court left many First Amendment issues, notably Free Expression and Association Clauses, unaddressed.
Neither the defendant nor the court addressed the question of whether the websites at issue were engaged in the illegal bartering of votes. The question would likely include a discussion of whether the mechanism on the site was conduct or protected speech. To answer this question under the specific California statutes, a court would need to determine whether the unenforceable and unverifiable pledge to vote is an "other consideration" under California statute that could induce another voter to vote for a particular candidate. The plaintiffs in the case rightly conceded that an offer to give money in exchange for a vote would be illegal under federal law and most state statutes. However, it might be hard to measure any tangible value to the voter who receives an unenforceable and unverifiable promise from another voter.
Even if a promise or pledge to vote did have measurable value, the usual detrimental effects of votes given for traditional consideration (such as money or position) are certainly absent. A wealthy voter has no advantage over a poor one when it comes to trading a vote. A genuine trade could occur only once, but multiple trades could be attempted by the rich and poor alike. The potential for fraud and abuse, certainly present when a trade of votes is contemplated, is no greater than if a voter bases his or her choice upon an unverified statement about a political candidate or the candidate's views.
Many in the press have compared individual vote swapping to logrolling in state and federal legislatures. Why, they say, is it impermissible for two voters to agree to vote in a way that advances their collective desires when legislators in California and elsewhere routinely agree to vote for a bill that they do not support in return for a promise by the bill's sponsor to vote for a bill that they do support? "Logrolling practices are well-known, and have never been thought to be constitutionally proscribable."5
Prior Restraint of Speech
If the district court accepted the secretary of state's apparent argument that his actions did not amount to a prior restraint of speech, it did so with no explanation. The case cited by the plaintiffs in their reply brief, Bantam Books v. Sullivan,6 also involved an opinion by a nonprosecutorial officer of the state. In Bantam Books, the official's opinion that certain expression was illegal obscenity was considered by the court to be a threat of prosecution or blacklisting, despite that officer's lack of actual authority to prosecute. A more recent case cited by the plaintiffs, Culinary Workers v. Del Papa,7 involved a letter sent by the attorney general to a union informing it of possible violations of state law. Again, despite the attorney general's protests that he had no authority to prosecute the union under the statute cited in the letter, the court held that the letter was a sufficient threat to give the union a basis to seek redress in the courts.
The secretary of state also ignored the restraint on speech that his letter may have imposed upon voters who had used or heard about the site or similar sites. These voters, who joined the ACLU's suit, alleged in the complaint that they had hoped to access the Nader Trader websites to make contact with other voters who shared their political concerns. These voters alleged that, after the secretary of state's actions, they were afraid of prosecution by the state, and that, as a result, the state kept them from exercising political speech and associational rights.
Intimidation of Voters?
Even if it were proven that the secretary of state's action and California law did place a prior restraint on speech, the secretary of state would still be able to argue that this restraint was narrowly tailored to achieve the compelling state interest of preventing coercion or intimidation of voters. As the plaintiffs pointed out in their brief, a limit on electioneering within 100 feet of a polling place has been held to be a narrowly tailored remedy to achieve this interest.8
It is unlikely that the state would demonstrate that the vote swapping sites presented the same level of intimidation or coercion as face-to-face electioneering at the entrance to a polling place. Voters, while compelled in most cases to go to a polling place to vote, are not required to visit a vote swap website or even to discuss voting preferences prior to the election. Moreover, even if a voter voluntarily visited a Nader Trader website, was introduced to another voter who wanted to make a voting pledge, and made such a pledge with that other voter, an anonymous and distant pledging partner would not present the same face-to-face coercion present at a polling place.
Regardless of how vote swapping sites are judged by the courts under the Constitution, many citizens will object to the idea of swapping votes on the ground that such an action is immoral, irresponsible, and subversive of the electoral system. The media reports and popular discussions in Internet chat rooms thus far regarding the Nader Trader sites have focused not on the legal issues involved, but rather on the prudence and implications of engaging in the activity. Supporters of the Nader Trader sites' legality should find this debate healthy because it reinforces the First Amendment principles that they believe are embodied in the vote swapping process itself.
1. A message from one of the Nader Trader websites might have said:
We have located someone who would like to swap votes with you. You have indicated you are a Gore supporter from a blow-out state (D.C.) who is willing to vote for Nader if a Nader supporter in a swing state votes for Gore.
Vote Swapper #3471 from California has agreed to vote for Gore in exchange for you voting for Nader. Of course, remember that this is just a friendly agreement, and you are taking their word that they will follow through. We encourage you to contact this person, their name is [first name] and their email address is [name]@hotmail.com.
If you change your mind and would like to opt-out or if you are unhappy with your partner, use the link below: [link]
2. Cal. Election Code section sign (twice) 18522-18522 Section 18521 provides, in relevant part, that
[a] person shall not directly or through any other person receive, agree, or contract for, before, during, or after an election, any money, gift, loan, or other valuable consideration, office, place, or employment for himself or any other person because he or any other person: (a) Voted, agreed to vote, refrained from voting, or agreed to refrain from voting for any particular person or measure . . . (d) Induced any other person to . . . (3) Vote or refrain from voting for any particular person or measure.
3. Porter v. Jones, No. 00-11700 RJK (C.D. Cal. 2000).
4. 521 U.S. 844, 870 (1997).
5. Memorandum in Support of Plaintiffs' Application for a Temporary Restraining Order at 15. See also Richard L. Hasen, Vote Buying, 88 Cal. L. Rev. 1323, 1338-48 (2000).
6. 372 U.S. 58 (1963).
7. 200 F.3d 614 (9th Cir. 1999).
8. See Burson v. Freeman, 504 U.S. 191, 198-99 (1992). In Burson, the Court balanced the right to free expression with the right to vote, and held that the state has compelling interests in (1) "protecting the right of its citizens to vote freely for the candidates of their choice," and (2) protecting "the right to vote in an election conducted with integrity and reliability," which are advanced by the narrowly tailored restriction on electioneering within 100 feet of a polling place. The case also provides a thorough history of the evolution of the secret ballot and other measures taken in the United States and abroad to prevent fraudulent elections.
Deborah J. Matties is an associate with Covington & Burling in Washington, D.C.