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Protecting the Internet as a Tool of Political Association: Porter et el. v. Jones

In the weeks leading up to the 2000 election, many voters around the country worried about finding a candidate for whom they could vote in good conscience. As in past elections, voters dissatisfied with the two major parties considered voting for their preferred third party candidate, but remained concerned that such a vote might result in the election of a major party candidate whom they strongly opposed. Given the close polling numbers for the major party candidates, the vagaries of the Electoral College, and the incentive to help third parties gain federal matching funds by achieving 5% of the popular vote, many such voters found themselves in a bind.

In the late weeks of October, numerous websites appeared on the Internet, offering these voters information about developing informal political associations between voters in different states. These sites instructed people about the Electoral College and the competitiveness of the major-party races around the country. Many of these sites also maintained searchable databases of e-mail addresses of like-minded voters who wished to discuss the possibility of concerted political action.

For example, two voters in distant states who shared the same political goals (for instance, support for the Green Party’s goal of receiving 5% of the popular vote and a preference for one of the major-party candidates) could visit these web-sites and learn each other’s e-mail addresses. These voters could then contact each other on their own to discuss the possibility of concerted action in which the voter from a noncompetitive state would cast a ballot for the third party candidate while the voter in a competitive state would vote for the preferred major-party candidate. This type of practice, popularly known as "logrolling", has been common in Legislatures and political parties for centuries. It allows people to develop political associations to achieve common goals — an essential democratic freedom protected by our Constitution.

In late October 2000, the California Secretary of State sent a letter to the founders of one such web-site, threatening them with prosecution under the state laws that prohibit conspiracy and the sale of votes for money or other things of value. On behalf of voters, internet users, and the founder of a so-called "vote-trading" web-site, NVRI and the ACLU of Southern California sued the California Secretary of State to put an end to his prior restraint and impermissible chill of the free speech and political association of persons who wished to use the internet to discuss concerted voting strategies.

Working with attorneys from the ACLU of Southern California, NVRI sought a court order directing Mr. Jones to cease all threats against citizens who wish to use the Internet in this fashion to pursue political association and discussion.The U.S. District Court for the Middle District of California declined to offer any relief before the election.

NVRI and the ACLU-SC then amended the Complaint to seek damages as well as prospective relief. Faced with a ,motion by the state, the District Court dismissed certain claims and decided to abstain from the remainder of the case, keeping jurisdiction over the matter pending the state court determination of whether the state statutes prohibiting vote-buying apply to "vote-trading" activities. The plaintiffs appealed. On February 6, 2003, the Ninth Circuit Court of Appeals unanimously reversed the district court, ordering the district court to prepare the case for trial on all claims.

NVRI firmly believes that the Internet is a powerful new technology that can advance the cause of democracy by allowing voters an easier and relatively low-cost opportunity to form political associations and discuss voting strategies. Through this lawsuit, NVRI hopes to vindicate the right of all citizens to full participation in the electoral process.

To read the legal documents in this case please visit our legal library.

Challenging Barriers: