Reprinted from the www.VoteExchange.com bulletin board

TexasProgressive
What Legality Problem?
Fri Nov 3 13:18:44 2000

So California's Republican Secretary of State has threatened to prosecute VoteSwap 2000, and effectively shut down their website. (http://www.voteswap2000.com) So the ACLU is filing a lawsuit against that state to enjoin it from doing so.(http://www.aclu.org/news/2000/n110200.html) As a Gore or Nader supporter who just happens to live in the wrong state, you should care less!

As long as all you exchange with your counterpart in another state are ideas and information, you're protected by the First Amendment's guarantees of free speech and association.

The Election Code provision relied on by California says that "a person shall not ... receive ... valuable consideration ... because he ... voted ... [or] induced any other person to ... vote ... for any particular person ..." California Election Code, Sec. 18521 (http://www.leginfo.ca.gov) The key terms here are "valuable consideration" and "inducement," both of which are concepts borrowed from contract law.

The essence of the prohibited conduct is a "quid pro quo" between the two participants - a mutual agreement between two voters that each one vote for a candidate that they would not otherwise vote for. It's the one person's promise to vote one way that is the "valuable consideration" for the other person's promise to vote the other way. And, it is each voter's promise is the "inducement" for the promise of the other.

Why should any of this matter to two voters who don't make a mutual agreement? No, it should not!

Consider a progressive Texas Democrat who meets a Wisconsin Green Party member in cyberspace. After discussing the relative merits of voting strategically instead of foolishly, the Wisconsin voter concludes that maybe it is in his own interest after all to prevent Bush from appointing the next four Supreme Court justices. And conversely, the Texas voter comes away feeling that by casting one popular vote for Nader he can possibly contribute to a more progressive agenda in the 2004 presidential race.

No one promised anything. Instead, each one simply woke up to the folly of their own former voting intentions and discovered they were about to make a hugely regrettable mistake. Sure, each voter had some impact on the other in the course of the discussion. And each was somewhat comforted to learn of the other's transformation. But there was no exchange of "valuable consideration" and neither "induced" the other to act contrary to her own interests.

Take a look at your own state statutes to see if they include a provision similar to that of California. They're all accessible on the web. While some states have none at all, virtully all those that do exist revolve around the concepts of "valuable consideration" and "inducement." (See, for example, Arizona Election Code, Sec. 16-1014 at http://azleg.state.az.us/ars/16/1014.htm and Texas Penal Code, Sec.36.02 at http://www.capitol.state.tx.us/statutes/) Some even require that the consideration have monetary value. (see, for example, Wisconsin Election Code, Sec. 12.11 at http://folio.legis.state.wi.us/) Decide for yourself!

What are you waiting for? Take advantage of this ground-breaking opportunity to combine progressive grassroots activism with web-based information technology. Can you think of a more pristine example of the First Amendment in action?