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Burden of Proof

Is Vote-Swapping Over the Internet Legal?

Aired November 2, 2000 - 12:41 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: The electoral process, and high technology collide at an intersection of the information super-highway. Vote-swapping over the Internet: Is it legal? and will it shape presidential history next Tuesday?


CHARLIE LEVINSON, VOTE SWAPPER: This was a really tough election, especially when people I respect started showing up in Oregon to tell Nader supported that they absolutely couldn't vote for Nader. I vote for Gore and somebody else votes my conscience for me.

RALPH NADER, GREEN PARTY PRESIDENTIAL CANDIDATE: Al Gore thinks he's entitled to your votes. Al Gore thinks that we are supposed to be helping him get elected.

I got news for Al Gore, if he can't beat the bumbling Texas governor with that terrible record, he ought to go back to Tennessee to his tobacco farm.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

A new element in campaign 2000 has surfaced on the World Wide Web, and in some cases, the law has stepped in. Over the last few weeks, several Web sites have sprung up, urging supporters of Green Party candidate Ralph Nader and Democratic rival Al Gore to trade votes. Their goal: to allow Nader supporters in battleground states to trade their vote with a Gore supporter in non-battleground states. In the end, Gore improves his chances of obtaining crucial Electoral College votes, and Nader maintains his chance to capture 5 percent of the national vote, enough to garner matching federal funds for the year 2004.

Some of these sites were shut down Monday night after the California secretary of state informed their operators they were violating state law, but other sites remain on-line.

Joining us today from Sacramento is Bill Wood, who is the chief counsel to the California secretary of state. In New York, Jeff Neuburger, an e-commerce attorney; in Boston, we are joined by Gregory Luke, with the National Voting Rights Institute; and, in Providence, Rhode Island, we're joined by Lucia Gill Case, who is the founder of

And here in Washington, Carol Webster (ph), election law expert Ken Gross, who is representing, and Anne McWilliams (Ph).

And in our back row, Lori Record (ph), Joe Travalini (ph), and Jui Vijaay Vargiya (ph).

Let me go first to you, Lucia, in Providence. You are the creator of winwincampaign. What is it? And why did you do it?

LUCIA GILL CASE, CREATOR, WINWINCAMPAIGN.ORG: Well, Greta, I did it because I was very frustrated watching the election and seeing that Nader's candidacy was being talking about, in terms of interfering with Gore becoming president. And I thought to myself: Well, there's no reason why that needs to be an issue; that Ralph Nader can achieve 5 percent or more of the popular vote, and Al Gore can become president, which I firmly believe is the best outcome for our country on Tuesday, and we just need to think collectively as voters and vote strategically.

VAN SUSTEREN: Lucia, before you became what I guess we could sort of call a Nader trader, instead of maybe Nader's Raiders, before you became that, what do you do? Is this -- is this your occupation, creating Web sites? What do you do when you are not doing this?

CASE: Well, what I do is chase after a toddler. I'm quite nervous being on television. This is my first sort of public act was creating this Web site with the help of Tensa (ph), on-line political advocacy group in California, and with the support of a lot of people. But really I had this idea in the middle of the night. My husband thought it was great. My friends and family thought it was great. I seem to have lost something here on the mike.



VAN SUSTEREN: Let me ask you this. I actually went on your Web site. I'm not sure what I did, and Roger would love the fact that I was so computer literate, but I went on your Web site, and I said I was a voter from the great state of Wisconsin, my home state, and I think I swapped something, or what did I do?

CASE: No, you didn't swap, if you did anything you pledged, you pledged in Wisconsin, a swing state, to support Al Gore, in order the get him those Electoral votes, and what you did was to pledge support for the idea, the idea that together as voters we can think strategically and support both candidacies.

Unlike some of the other sites that have run into some legal troubles, you are not pledging to vote for somebody in exchange for somebody voting for somebody else. You are just endorsing the idea that collectively we can make a difference in this election, and ensure that it is successful for both of these men who are valuable to our country.

VAN SUSTEREN: Speaking of legal trouble, let's go out to Sacramento, California, Bill Wood. You have and with your secretary of state in California shut down some sites. Do you have any problem with Lucia's site?

BILL WOOD, CHIEF COUNSEL TO CALIFORNIA SEC. OF STATE: No, as a matter of fact, I was in contact with an attorney for yesterday I believe it was, and we took a very close look at that site at the request of their attorney, and our conclusion was that that site did not violate California law, and I think for precisely the reasons that you just heard.

The very clear difference is that it is not in fact a swap or a trade or any kind of exchange of the vote. It is in fact a discussion, it is a political discussion, And the secretary of state of California believes that is protected political speech.

VAN SUSTEREN: Ken, you represent the Web site, but I've got to tell you is that I heard Bill say that there isn't any -- we use the term consideration in law I think that there's no quid pro quo -- but I've got to say, a pledge can be, at least in my mind, could be interpreted by some aggressive prosecutor maybe as a quid pro quo. Why is this different from some of the other Web sites that have been shut down?

KEN GROSS, ELECTION LAW EXPERT: Well, first of all, you are dealing with a fundamental First Amendment right, to decide who you want to vote for. You can express that right publicly through the Web site. And short of an actual contractual or firm agreement between someone say in Wisconsin, and someone in a state like Rhode Island, where the election may not be close, if you don't have some sort of firm agreement like that, then I don't think there's any basis for anybody to suggest there's anything improper.

VAN SUSTEREN: Have I stepped in anything or done anything improper, I'm not currently registered to vote in my home state of Wisconsin, I've gone on and done something on this Web site, if I had skewed even the pledging.

GROSS: No you haven't skewed the pledging, you've got on the Web site, there is a public statement on the Web site you living in the state are willing...

VAN SUSTEREN; I don't live there.


VAN SUSTEREN: At least not right now.

GROSS: If you've done something that's improper because you misrepresented where you lived or who you are, then it could skew it, and I think in large part this is based on the good faith of the participants involved. If someone says they are going to vote for Gore, no one is going to follow them into the voting booth to say that they voted for Gore.

VAN SUSTEREN: In my own defense, I must admit that I was sort of clicking along and trying to figure out what I was doing before I actually accomplished whatever it was.

But let me go to New York.

Jeff, is there any sort of danger associated with this, you know, people are skewing even sort of the pledging so that even Lucia can't accomplish her goal?

JEFFREY NEUBERGER, E-COMMERCE ATTORNEY: Well, I think that you have to be careful in calling something like that dangerous. You don't want to go over the line and try to inhibit people from voicing their opinions and their ideas. I think where it gets dangerous is when there's actually a more traditional form of consideration, whether it is monetary or otherwise.

VAN SUSTEREN: All right, well, we are going to take a break. When we come back, we are going to talk to Gregory Luke, who is going to file a lawsuit relating to these trading on-line. He thinks it is OK. Stay with us.


An appeals court in Phoenix ruled that a woman's estate is not entitled to invalidate its $60 sale of two paintings.

The artwork was resold at auction for more than $1 million. The estate sought legal action after realizing the paintings' real worth.




PAT KEANEY, NADER CAMPAIGN: It leaves out the grassroots level because there are people working hard in those battleground states for the Green Party that need those votes to gain ballot access in those states, to reassure their new supporters that they are going to be a viable option. So for people to turn tail and go to Gore this close to the election, as the result of some swap that they have done over the Internet, doesn't sit well with us.


VAN SUSTEREN: Just five days before the 2000 election, and a group of Web sites is advocating that Gore and Nader supporters across state lines trade their votes. The actions could reshape Al Gore's Electoral count, and help Nader gather a coveted 5 percent of the national vote.

Gregory, Lucia's site has not been shut down. Bill Wood and Ken Gross says it is legal because it is a pledge, and doesn't violate the law, it is different.

You intend to file a lawsuit about some sites that have been shut down. What is it you are seeking to do? And why do you think they sites shouldn't be shut down?

GREGORY LUKE, NATIONAL VOTING RIGHTS INSTITUTE: Well, they shouldn't be shut down because they are not doing anything differently from Lucia's site. We are talking about political association, a core protected First Amendment value.

I am, frankly, stunned to hear a representative of the secretary of state's office admit that we are talking about fundamental First Amendment protected activity here, and I cannot fathom what he thinks is different about these California-based sites from the sites that are based here on the East Coast.

VAN SUSTEREN: Well, let's ask him. Bill, what about it? What is different about Lucia's, from the sites that California has successfully shut down?

WOOD: Well, that site, winwincampaign, is engaged in essentially a discussion. It is very plane when you look at the site.

The one site that we were concerned about that was based here in California, when it came to our attention late last weekend, that was engaged in, very bluntly, in brokering in the trading of votes. It has to be very simple and it has to be very clear, a vote is not a commodity. You cannot sell it, you cannot trade it, you cannot barter it, you cannot exchange it. You can vote it. That's a fundamental value in a democratic society. In California, we have a history of the manipulation of the vote and corruption in the 19th century.

VAN SUSTEREN: Bill, what is the penalty in California if you do that?

WOOD: The penalty is very severe. California looks at this very seriously. It has a maximum possible punishment of three years in state prison.

VAN SUSTEREN: Lucia, did you ever contemplate, when you created your site, to make sure that you were not making yourself eligible for that three-year stay in the state of California prison system?

CASE: Yes, Greta, I wasn't too interested in their hospitality in that regard. We did actually look into the legal implications of the situation.

VAN SUSTEREN: Greg, you want to get back in.

LUKE: I want to say I find this distinction completely untenable. The material that was up on the Web site that the secretary of state in California is chilling promotes precisely the same idea that Lucia is promoting. They created a database that allowed citizens in different states to communicate with each other. There's no binding enforceable agreement...

VAN SUSTEREN: Greg, when will this get filed?

LUKE: It is going to be filed this afternoon.

VAN SUSTEREN: Will this be filed in a federal court in California?

LUKE: Yes, ma'am.

VAN SUSTEREN: All right, Ken, let me ask you, and then I am going to go to Jeff to comment. What do you think the likelihood that Greg is going to be successful before a federal judge?

GROSS: I think Greg has a very good point. While our Web site didn't go that far, what the law says is that you can't pay someone to vote in some jurisdictions, clearly that's not happening. In other jurisdictions, it says you can't give them anything of value. Well, if your vote is not a commodity, are you really giving someone something of value to say you are going to vote for someone else, if you agree to vote for another person on the other end of the transaction? I think that is a bit of a stretch to say that that is illegal.

VAN SUSTEREN: Jeff, where do you weigh in on this? Is Greg going to win or lose?

NEUBERGER: Well, I think this is another example of an issue that has arisen for the first time because of new technology. I think this is a situation where a court is going to will have to look at the existing election law.

VAN SUSTEREN: All right, don't duck that. Tell me, is he going to win or lose, if he were in your court?

NEUBERGER: If he was in my court I would have to look at the intent of the statute and see what is actually happening. I think we all should take a lesson from this, and states should amend their laws as necessary to address this in the future.

VAN SUSTEREN: All right. Lucia, let me go back to you, in terms of your site. Are you monitoring? Do you worry about people like me who sort of are bumbling when it comes to the computer, and I just sort of was testing it to see what it was all like, and I just clicked away, and I'm not really sure what I did when I clicked away.

CASE: All right, Greta, well, I don't think you would have had any problems seeing exactly what you were doing on our site had you done something that you didn't mean to do. You go to our site...

VAN SUSTEREN: I've got a guilty conscience, basically.

CASE: Don't worry, Greta, it is OK. You go and people can read about the idea about how to support both Nader and Gore, and decide if they are interested in doing that. And if so, we tell them how to vote strategically, and then they have a chance to confirm a pledge, a strategic pledge for one of the candidates. So you have an opportunity to confirm that you, in fact, want to take part. VAN SUSTEREN: Lucia, in the 25 seconds we have left, how are you going to know if you are successful? How do you know the results of your site?

CASE: We are never going to know for sure what happened, but there's a tremendous amount of public support for this, there is a tremendous amount of interest in this issue. I think left-leaning voters across the country are frustrated with the election, they want to come together, we want to see a successful resolution, and we can have one for both Nader and Gore on Tuesday.

I think that we've had a lot of hits to our site, a lot of people visiting it and thinking about it, even if they are not actually taking the pledge, they are really thinking about it.

VAN SUSTEREN: And how extraordinary, I am sure, that when they drafted the Constitution they never really envisioned this.

But that's all the time we have for today. Thanks to our guests, and thank you for watching.

Today on "TALKBACK LIVE": presidential politics and the generational divide. Are the candidates focusing on seniors at the expense of our children's future? Tune-in at 3:00 p.m. Eastern time.

And tomorrow, we'll focus on election 2000. Thursday's guests will be Republican Tommy Thompson, from the great state of Wisconsin, he is the governor. And that is one of the key battleground states in Tuesday's presidential election. Join us then for another edition of BURDEN OF PROOF.



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