LOS ANGELES - The ACLU affiliates of Southern California and San Diego announced today that they will seek a temporary restraining order against California Secretary of State Bill Jones, who threatened criminal prosecution against a voter discussion and strategizing web site called Voteswap 2000. As a result of a letter Jones sent to Voteswap, that web site and two others, including the plaintiff votexchange2000.com, decided to shut down this week rather than run the risk of being prosecuted. The ACLU is also filing the lawsuit on behalf of a prospective voter. The National Voting Rights Institute joins the ACLU as co-counsel in the case.
"votexchange2000 and other similar web sites have a clear political message," said Peter Eliasberg, staff attorney at the ACLU of Southern California, "and that qualifies them for the highest level of protection under the First Amendment, whether or not Secretary Jones approves of their message or aim. The site expresses an unmistakable political message by their users seeking to associate with one another: 'This election year, perhaps more than any before it, every individual vote is crucial to both the election of a major party candidate and the building of a viable third party. Vote strategically -- in some states, a vote for Nader may be a vote for Bush, and a vote for Buchanan may be a vote for Gore.'"
The vote discussion and matching sites sprang up as early as October 1, and several were launched recently in response to an on-line opinion piece advocating that voters get together on-line and strategize about how to accomplish their shared aims. Scores of thousands of potential voters have visited the sites since they were launched.
Republican Secretary of State Bill Jones cracked down on the innovative discussion of voting strategies, claiming that sites which host and facilitate such discussions violate California's Election Code ﾌ_ 18521, which prohibits offering payment or any other "valuable consideration" to people so that they will or will not vote.
ACLU attorneys say the law is not applicable, or, if construed to be applicable, that it is not, in that case, Constitutionally sound.
"Discussing and agreeing to a co-operative voting strategy is absolutely distinct from offering or receiving payment for a vote," said Eliasberg. "This is not equivalent to handing someone a five-dollar bill. This is an obviously unenforceable and unverifiable personal pledge to vote in a certain way and is therefore completely from offering money. Jones's interpretation of this law could conceivably qualify any kind of speech as an inducement. If I promise to commend a person for voting in a way I approve of, is that offering an inducement?"
"The truth is," said Eliasberg, "Jones's interpretation of this statute is so far-reaching that it could encompass a vast array of voting-related behavior and speech which we all recognize as perfectly legitimate, even if we don't practice them ourselves."
Eliasberg offered the following examples of voting-related behavior and speech that Jones's interpretation of the law would make criminal:
--Two spouses discuss their vote, realize they disagree on every important issue, and agree that, since they're cancelling one another out, neither will vote.
--Two friendly legislators who disagree with one another's positions arrange not to vote on two separate occasions, when one, then the other, is absent, thus cancelling out the effect of their absences on the final decisions made.
--A politician such as Governor George Bush or Vice President Al Gore offers a monetary inducement in the form of a tax cut to a voter.
--A politician, during tough economic times, promises "a chicken in every pot" if voters cast their vote for him.
--A political columnist urges voters to do exactly what the web sites in question urge them to do.
"Bill Jones seems to be afraid of the Internet and the powers of expression and association that it gives to people," said Eliasberg. "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 and other government officials and agencies need to take notice," said Eliasberg. "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."