Those cutely named "Nader Traders," whose Internet ingenuity has been much-celebrated during the last two weeks, might, on election day, be having second thoughts.
First, the traders might be wondering whether or not they should trust others in far-off corners of the Internet with their vote – "Will that e-mail address vote as he said he would?" But beyond thoughts about strategy, the traders would do well, Tuesday, also to see if they are breaking the law by trading votes.
The legality of trading a vote is most pressing now, as a federal judge Monday refused to grant a temporary restraining order against California Secretary of State Bill Jones's attempts to shut down a few of the trading sites. U.S. Judge Robert Kelleher gave no reason for denying the restraining order.
"The bottom line is that voters need to know that votes can't be bought, sold or traded for anything of value, including another vote," said Alsie Charles, a spokesman for Jones's office, in response to the ruling. "The quid pro quo trading of votes is illegal in California."
By some estimates, more than 20,000 people signed up to trade votes using the many trading sites that went online during the past few weeks. Traders agreed to vote for Green Party presidential candidate Ralph Nader in states that were probably going to be carried by Republican George W. Bush, giving Vice President Al Gore a better chance in toss-up states.
But last week, Secretary of State Bill Jones threatened Jim Cody and Ted Johnson, the owners of http://www.voteswap2000.com"VoteSwap2000.com, with criminal prosecution if they didn't shut down their site.
Cody and Johnson immediately closed up shop. "The fear of prosecution played a big part in our decision," Cody later said.
VoteSwap2000 had been the most popular of the sites, and when it closed down, the owners of other sites thought that they would be next on Jones's list. Fearing prosecution, Alan Porter, the owner of a similar site called Votexchange2000.com, also shut down his trading service.
But Porter was then contacted by the American Civil Liberties Union, and last Thursday he decided to join the organization in pursuing a temporary restraining order against the secretary of state.
"If votes were a tangible commodity, the state could legitimately say that you couldn't exchange them," said Mark Rosenbaum, legal director of the ACLU's Southern California office. "But you can't trade a vote any more than you and I can trade hopes for the future. It's not a real trade – it's pure association and political speech."
In a statement released last Friday, Secretary Jones called the ACLU's complaint "bizarre and a waste of all of our time." Shad Balch, a spokesman for the Secretary's office, said that a temporary restraining order preventing the secretary from shutting down Votexchange2000.com was unnecessary because the office didn't consider that site to be illegal.
Balch said that Voteswap2000, the site that was shut down, had been acting as a "broker" of votes. On the other hand, he said, Votexhange2000 was fostering a discussion of voting, and so had not been on Jones's list of sites to shut down.
It's difficult, though, to see a difference between the two sites, and why the secretary would think one is OK, while the other is not; both seem to promote vote swapping to let Gore take the White House while allowing Nader to win 5 percent of the popular vote.
"If (Jones) thinks our client is OK, he hasn't said that," Rosenbaum said of the secretary's response. He suggested that the only reason that Porter's Votexchange2000 was not pursued by Jones was because Porter voluntarily shut it down before the secretary could get to it.
Both parties had expected a ruling last Friday; a temporary restraining order against Jones would have allowed Porter to put his site up over the weekend. But the judge delayed his decision until Monday evening – which was late enough that even a positive decision for the ACLU would have been moot.
Porter said that even if his site is down, he's glad that other sites are still operating.
"We're just fighting for the legal side," he said before the judge issued his ruling.
In a similar case, Jeff Winchell, who runs his own trading site, was asked last week by Oregon Secretary of State Bill Bradbury to shut down his site.
"The facilitation of the vote trading by a website operator is ... illegal," Bradbury said in a statement. "Trading one’s vote in Oregon is not only illegal, it is wrong."
But Winchell found help in Davis Wright Tremaine, a large Northwestern law firm, and last Friday his lawyers replied to Bradbury, saying that Winchell would not shut down his site.
Winchell has not heard anything from Bradbury's office since then.
More uncertain than the legality of vote trading, though, is its efficacy. Most of the sites' operators admitted that although they believed in the idea, they had no way of knowing whether it would work on Election Day.
"I'd love to see if it's changed the state-to-state tracking polls since we started," Winchell said. But the effect of trading on those polls, Winchell conceded, would be difficult, if not impossible, to see.
"We'll probably never know if this worked," he said.
