Friday, February 7, 2003
Ninth Circuit Rules:
First Amendment Suit by Internet Voting Site Can Go Forward
By ROBERT GREENE, Associate Editor
The Ninth U.S. Circuit Court of Appeals yesterday reinstated a lawsuit brought against California by operators of a website that allowed people to trade promises to vote for Al Gore in one state for promises by others to back Ralph Nader in another state in the 2000 presidential race.
The operators of votexchange2000.com should have a chance to prove their First Amendment rights were violated when then-Secretary of State Bill Jones threatened criminal action against the site, the court ruled. The site shut down before the election for fear of prosecution.
Judge Richard Paez wrote for the three-judge panel that Senior U.S. District Judge Robert Kelleher erred when he declined to hear the suit under the abstention doctrine.
That doctrine, established in the 1941 U.S. Supreme Court case of Railroad Commission v. Pullman, requires federal trial courts to abstain from hearing a suit in certain situations, such as when the case could be resolved on separate state grounds and touches on a “sensitive area of social policy upon which the federal courts ought not enter.”
That factor is almost never present in a First Amendment case since the abstention would cause a delay in resolving the issue that could chill the First Amendment rights at issue.
In this case, Paez said, the site was down and the election was over, but a new election is looming next year and the plaintiffs and others like them need to know whether they can put their site up again. Paez noted that the litigation already has taken two years, “and it is far from clear that the case would be resolved prior to the 2004 election if Plaintiffs were sent to state court.”
Vote swapping sites began springing up in October 2000, usually with the intention of benefiting Nader’s Green Party candidacy. The idea was that Gore Democrats in states where their candidate was sure to be bested by Republican George W. Bush would, instead if “wasting” their votes, get a Nader supporter in a swing state to vote for Gore.
The idea was considered by many to be a win for the Gore team, because the Democrat had been worried about losing crucial votes to Nader in swing states but now could get some of the Nader people to vote for their man instead. In exchange, the Gore voter in a Bush state would agree to vote for Nader. Nader had no chance of carrying any state, but his backers were aiming for at least 5 percent of the popular vote nationwide—enough to qualify a 2004 Green Party presidential candidate for federal funding.
VoteExchange.com, based in Washington, D.C., went up Oct. 1. It was followed by NaderTrader.com in Wisconsin, then Nader’sTraders, Votexchange.org, TradeVotes.com, and a host of other informational and “voter matching” sites.
Citing the California Elections Code, Jones sent a cease and desist letter to the founders of voteswap2000.com, threatening criminal prosecution for allegedly brokering the illegal exchange of votes.
“Any person or entity that tries to exchange votes or brokers the exchange of votes will be pursued with the utmost vigor,” Jones wrote.
The threats were reported in newspapers, and one of the operators of the plaintiff, votexchange2000.com, decided to shut down out of fear or prosecution.
Several days later Porter, joined by several other individual Californians and residents of Massachusetts and UCLA’s Democratic Law Students Association and represented by the ACLU Foundation of Southern California and Harvard constitutional law professor Laurence Tribe, sued Jones, alleging his action deprived them of their free speech and free association rights.
Meanwhile, other sites based in other states were shut down under threat of prosecution.
Elections Code Sec. 18521 bars a person from obtaining any kind of consideration because he “voted, agreed to vote, refrained from voting, or agreed to refrain from voting for any particular person or measure.” Violation is punishable by up to three years in prison.
ACLU attorneys said at the time the suit was filed that Jones’ interpretation of the Elections Code would bar spouses from agreeing not to vote after realizing their votes will cancel each others’ out or even a politician offering voters “a chicken in every pot.”
“Bill Jones seems to be afraid of the Internet and the powers of expression and association that it gives to people,” ACLU counsel Peter J. Eliasberg said. “That power of combining immediate association and direct speech is the reason people have sought to regulate the Internet more strictly than other media. I don’t believe that Jones would have made the same threats if the same content had been expressed in a more traditional medium such as a newspaper column or a call-in radio show.”
Jones left office in November due to term limits.
Paez was joined by Judge William C. Canby Jr. and Eighth U.S. Circuit Court of Appeals Judge Donald P. Lay, sitting on assignment.
The case is Porter v. Jones, 01-55585.
Copyright 2003, Metropolitan News Company