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Published on Tuesday, November 7, 2000 in the San Jose Mercury News
Guerrilla Votefare
by John Fensterwald
BILL Jones is a spoilsport and a bully.

Last week, the California Secretary of State snuffed out Internet sites that encouraged Gore and Nader supporters in different states to ``trade'' votes. The operators of two California-based sites went dark after Jones vowed to prosecute them for vote-tampering -- a big-time felony.

The American Civil Liberties Union of Southern California filed suit in U.S. District Court on behalf of one of the site's operators, charging a violation of his First Amendment speech rights. Late Monday, without comment, U.S. District Court Judge Robert Kelleher, rejected the ACLU's arguments.

The ACLU promises to pursue an appeal after the election. I hope it does, for, contrary to Kelleher, I'd say Jones overreached.

The sites in question -- and -- did nothing illegal, prosecutable or, I'd say, improper. To the contrary, they represent one of the more ingenious ideas to come out of this election. They're testament to the power of the Web to bring people with mutual interests together.

It all happened fast -- Internet time. Less than two weeks ago, a constitutional law professor at American University expressed in the on-line political magazine Slate the dilemma facing hundreds of thousands of voters: They want to vote for Green Party candidate Ralph Nader, but they also don't want to help elect Republican George W. Bush.

Professor Jamin B. Raskin offered a suggestion: Supporters of Democrat Al Gore in states where Bush is way ahead, and Nader supporters in swing states should ``swap'' votes. They should agree informally to vote for the other person's candidate.

Each side would gain, Raskin said: Gore Democrats in foregone states like South Carolina would help Nader reach the critical 5 percent threshold for the Green Party to receive federal matching funds. Nader backers would help Gore in crucial battleground states.

Sure enough, more than a half-dozen vote trading sites sprang into action within days of Raskin's article. Some were merely informational.

One, Oregon-based, which had registered more than 625,000 hits as of Sunday, listed the Bush-leaning states and the toss-up states, and invited friends in each to make a voting pact with one another.

Others -- and -- went further. They acted as a go-between, with a database that matched Gore and Nader supporters who filled out a form stating their presidential preference and their state. Each pair was given the other's e-mail address (not their names or personal information) and told to negotiate on their own.

Voteswap2000 was Napster for voters, an intermediary for peer-to-peer sharing. Jones decided that it, like its more infamous cousin, was therefore violating the law.

Not federal law, mind you, but state law. Federal election law defines vote selling as offering your vote for something of monetary value, like cash or a CD player. Jones cited the California law that makes it illegal to offer or to accept ``any money, gift, loan, or other valuable consideration'' as an inducement to vote a particular way.

That's a stretch. The law was written to prevent trading a vote for something tangible. A vote is intangible; it can't be given as an inducement, for it has no value until it's cast.

A decision to vote strategically is not fraud. Given the way the system works, it can make sense. The Electoral College, with its winner-take-all rules in nearly every state, diminishes third parties, or reduces them to the role of spoiler. The 5 percent threshold for federal funding invites third party voting. Vote exchanging can resolve the conflict, if it lets a person vote for a third party, via proxy, without qualms that it might help elect the candidate the person likes least.

Legislators and representatives in Congress trade votes all the time based on promises they make: I'll vote for your bridge if you vote for my dam. Congress has a term for it: pairing. Knowing their opposite votes would cancel each other out, two politicians agree to skip a vote and take a long lunch.

There is a big difference, though: You know how politicians vote; their votes are public. Make a deal on, and you'll never know if your partner has honored the bargain. Any promise made would be a non-binding and unenforceable contact, since voting is done in secret.

Not only would the vote itself be unverifiable, but, under the way it's set up -- via e-mail -- you won't know whether your partner is an imposter: a 12-year-old or a Republican posturing as a Naderite. No wonder Ralph Nader and the Green Party have criticized vote-swap sites as open to ``fraudulent manipulation.''

There may come a time, when voting is done over the Internet, that the secretary of state will need to crack down on vote-sharing schemes to prevent fraud and coercion. But not now.

I wouldn't cut a deal for my vote with a stranger, but I wouldn't deny a more trusting soul to do so. is unreliable, but, as a forum for advocacy and protected expression, it shouldn't be declared illegal.

2000 The Mercury News


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