the principal issue in this appeal is whether the first amendment prohibits restrictions on speech and association concerning presidential elections over the internet where no money or items of tangible monetary value were exchanged but instead they merely the promises of mutual political benefit the conclusion that flows from brown versus hard ledge in the campaign contribution limits cases is the government's application the california elections code to the websites that issue and strategic voting agreements that they facilitated is in permissible because in fact they do not involve any promises of to exchange money rather items of tangible financial worse since round also before we get too far out legitimate interest in preserving the integrity of their electoral processes just as the state may take steps to ensure that it's governing political institutions of officials properly discharge public responsibilities and maintain public trust and confidence in the state has a legitimate interest in upholding the integrity of the electoral process itself of course of them goes on to say that when a state seeks to uphold their interests by restricting speech the limitations on state authority imposed by the first amendment are manifestly complicated now this is a fascinating case because it's clear that the heart of the political process of the state and yet the governor of the state is saying wait a minute this is a vote swapping manipulation of the electoral process and we ought to have some of the ability to step in and deal with it political process the question here is what kind of arrangements have the court and the courts allow to be prohibited for the state in order for the state to prohibit to for satisfy that interest and what i believe the line that flows from these cases yes on the one hand where there is money involved where there is the rovs changing dollars for votes or that the rocks change the idea that we are trying to buy legislation through excessive contributions the government has every right to step in in order to satisfy its interest in political process do you accept the proposition that doesn't have to be financial necessarily that getting your brother out of prison is something you couldn't promise to get a vote i except that your honor that's correct sam it's not an accident to use that example but it does move away from  if it isn't just a financial benefit but a benefit isn't there a benefit if you can say to somebody look participate in this swap and you'll get the electoral results you'll be happier with down the road yes but it's a mutual political benefit in the same way that with the kind of promise that a union makes to a candidate will support you if you promise to support legislation for example changing taft hartley are supporting minimum wage ri that are the lifeblood of the political process and what's involved there are the mutual political benefits that are similar to the individual mutual political benefits that are involved here we're not going outside the political process to say i'd like to line my pockets with five dollars or a hundred of entering into a transaction thanks to your clients of green to not vote what they really want to vote that is in this case i will vote for nader here in california although i really want to vote for gore if you will agree in another state to vote for gore instead of good faith california voter being conned by the evil bush organization i'm only saying that because we're talking about the two thousand election and one we won't go totally hypothetical one day arguable but let's  for the purposes of the hypothetical that some group of pro bush voters decide hey this is cute what we can do is induce the gullible california voters to agree to vote for nader and that's as far as the transaction in fact will go so they have now been in effect defrauded that is the california voters have been defrauded you know would california have any ability to were interested to prevent that kind of fraudulent arrangement going to believe the government always has an interest in preventing fraud is the proposition that we don't allow blanket restrictions on speech on the ground that some of the transaction may be fraudulent let's take the city example of again using the internet but in areas speech where there is even a lower level of protection commercial speech we would never allow the government to say oh boy if there are any financial transactions over the internet easily fraudulent because you're not going to the store getting your product and paying your money you have the faith that somehow or other you'll get the product from  treat this speech i respectfully disagree your honor i believe it is like a suit variety of other things that involved a chance to persuade people to vote a certain way in attempts to think yourself about what is the most well you can pitch your votes and indeed you can get your votes by going to california vote this way because it's going to affect the election and people over there were is not going to affect the election you can vote differently th scenario that the judge fisher offered nobody could stop somebody from making that pitch but to say not that you're persuaded that's the right thing to do we're going to offer you a specific exchange and then the last piece isn't simply speech it's the exchange and less and less fraud is permitted because fraud is done through articulation we don't deem fraud to be speech and here the exchange your vote isn't the speech it isn't something go out in compound if it were relevant to the core of it is really what makes that speech what makes a speech as opposed to conduct what makes it speech is that it is a discussion about and strategy about let's take it out of the concept the internet was think about talking to your brother in law in another state and saying i'm really struggling in this election whether it's corny or whether it's buchanan bush or what i'm really struggling and i'm trying to figure out what the right way to cast my vote is and your struggle with this with this individually when you take it into struggling  somewhere with someone else that's political association classic example thereof and you start talking about what is the best thing to do what are the consequences of my vote what does this mean and then when you enter this agreement which you're on a completely recognizes this non verifiable in the same way the promise in brown versus hart which is non non verifiable in the sense that will the candidates actually lower your taxes we don't know until after the election will the person actually vote for the candidate based on the promise the candidate makes none of those things are verifiable but that's what brown gets that these promises you do one thing i'll do another i the union will support you if you promise not to raise taxes that's a classic speech and association that is not conduct  in fact when the secretary of state shut down the least one of these weapons or threatened one of these web sites they eliminated the transfer mechanism but left the ability for people to exchange their views back and method of communication as opposed to the communication but that's as if the government would say well we want to allow you to make the phone call to your brother in law new york to discuss what's the significance of the vote and is there a strategic way that you and your brother in law  reading websites did was if you said i have this particular vote dilemma you and i have agreed you're in new jersey i'm in california because we haven't agreed with the website does it is what we're up on the website what the website would do is probably are aware that every political party and every five twenty seven group in the last two elections has had a system where you can match yourself you can get contact information for voters to do voter turnout that's not conduct the mere fact that  provision of information about somebody else was a complimentary political interest is not conduct that's classic speech in association i guess i'm having the same trouble over here trying to defend the exact mechanism of matching if i go on and log on to this website design i check a box or click a particular spot and say this is the way i feel now and how does how do i get connected to the other person the black box of the website i don't understand that they simply what will happen is assuming that there is someone who has what i call complementary interests you judge martinez will get an email saying so and so in x other state has expressed similar interests here is his email address or her email address and you can contact that person by email and i similarly would get an e mail saying judge martinez and here's his he has his email address he's expressed complimentary interest and then we would contact each other and blocks out the mechanism works and both of concerted to the email address being made available to the financial transaction the potentially makes this would make this for having a ball that immediately there wouldn't be under the statute i'm not sure that would change anything because it wouldn't be something that either the voter either voter was receiving but i think it's a lot more problematic prohibitively gone and we've never suggested to the contrary right now you have argued the dormant commerce clause ok now what distinguishes in the karmas clause analysis where you disagree could be prohibit you're saying that they can't do it because of the commerce clause no your honor i'm not because i don't think that the dormant commerce clause has anything to say about the the transaction about buying drugs over the internet the difference here is that what the commerce clause does the website that mr codey set up vote swap did not allow california users to use the site to be matched they could go on the site but they couldn't say i want to receive and that matching information from another voter so as a result what that what mr jones's threat of prosecution did was take a website that had no effect in california would allow somebody in florida perhaps to be matched matched up with somebody in ohio in states even where the secretary of state said flat but that's what the questions are reno was put let's suppose there's no monetary exchange that's when she said as i recall from the record that she would be very cautious well you're  trying to navigate through this is at what point does the dormant commerce clause in your analysis drop out of the picture or does it basically or and to what extent does it prohibit what california is doing without going to other hypotheticals in this situation with both swap dot com if a california resident had said i would like to be matched the site would say we won't do it so california residents were thrown out of participation in the matching portion of vote swap dot com as a result the threat of prosecution closing down the website had the effect only of prohibiting people from being matched in states outside of california that extra test territorial application is what causes the commerce clause problem particularly when other states said we don't have any objection to this at all but secretary jones sank we need to protect california's electoral interest shutting down the west like that doesn't affect california's electoral interest what so ever spent but he overstepped the california interest what could he have done with respect to the website that would not have run into the commerce clause problem as long as the website didn't allow for california users to engage in those transactions there's nothing we could have done so that's but so as long as the website excluding coal for users that's correct with respect to the extraterritorial application even the national political discussion that the election was perceived as close as it was made goes well he might be a good strategy it's not apparent to me somebody looking at the website unless you guess you signed on and started one of the transactions as you described it they wouldn't know that it didn't work in california where the evidence in the record is your honor and it's in mr wood's declaration i believe i don't have the pages right in front of you it's admitted that it was a very intense fax specific inquiry they made in order to determine which sites were ok weren't and that they did go on and look very carefully at the sites so the best evidence in the record is that they should have known and in these described it unless you initiated one of the swaps that wouldn't disclose to you that it doesn't work in certain states but no your honor and appearing to be dodging slightly that i don't believe i am we have a claim for perspective relief and the government has never suggested that they cannot in the future prohibit a website merely because they think it violates their conception of what the law should be even if it has no effect on california voters it's been fully briefed and they've never suggested that their position is oh we're not going to bother with these sites if they don't allow california voters to be matched up so with respect to the clinical perspective really for the post of the damaged dozens i don't think really matter whether the secretary knew at the time or not he clearly knows now  of the circulars they can only shut down the website and so far as of california voters with respect to the commerce clause your honor with respect to the first amendment claim and statutory construction claim the answer is that the government can't do this period extend the concept of consideration if it has been already done through through through state law that that would then take care of the statutory problem and then you're back to the first amendment that's correct then the first amendment would not and and in the first amendment would say you can't stop this vote swapping scheme even as to californians because there's no out where this thing goes it almost seems like a legislative problem but we'll deal with what we've got and i'm just trying to find out the parameters of where you think this case goes  california to give up their vote and not give the reciprocity that they expected i think california already does that through their fraud statutes and so and that's what the schnberg case says basically we don't silence the first amendment  association it's about a state's ability to regulate conduct that threatens to corrupt and erode the integrity of the state's electoral process for the sole purpose of qualifying a third party candidate for matching federal funds in the next presidential election by operating computer database here in california that actually brokered votes between individuals plaintiffs did in fact violate the elections code for vision's these databases directly mass email addresses of individuals from other states states which in fact could have included california page fifty three footnote nine of appellants opening brief concedes that given the lack of these websites ability to verify in the user locations there is it's almost impossible the california voters did not use votes swat two thousand dot com in fact the record also shows that the other plaintiff involved in this case vote exchange two thousand dot com actively considered california a swing state and actively included california in the vote swapping database now there was the issue in this case again this conduct your honors i know you had multiple questions regarding the actual workings of these websites and it's my understanding the based on the record the evidence shows individuals would log on submit their information including the state and work there and what were they communicating they were communicating their preferred candidate their preference and ralph nader and in al gore in the state of the residence this information would go to the computer database which was at all times located in california the information would come into california this database on both swap two thousand and least would match up based on the preferred method is in the series that the point of spot would provide the best results the physical electronic conduct occurred in california that's what secretary jones keyed in on and if we look at the letter the actual conduct at issue here secretary jones narrowed his his objections to solely this discrete distinguishable aspect of plaintiff's website this aspect that there was actual vote brokering going on with vote swap two thousand in the letter speaks volumes i think your honour's if you look at the final paragraph secretary jo this is it the record page zero eight one three zero eight seven the very last paragraph on on page two zero one eight seven six terry jones says quote i demand used you stop this activity immediately at no time did secretary jones object to the speech association aspects of these websites plaintiffs were free to discuss voting strategies the record shows secretary jones reviewed multiple other websites wherein strategic voting on behalf of third party candidates was discussed none of these other websites it's were were objectionable to secretary jones and there's only one reason for that that's because both slot two thousand was the only web site analyzed by secretary johnson a staff that they determined had this discrete distinguishing conduct feature that actually conducted of both slot here in california so l so why was the matching mechanism that was the problem to the letter sent by secretary general's office civically identifies i think if we look at the third fourth paragraph yes i just read it and  were free to remain open afterwards so long as they didn't do this transaction in california which actually brokered these votes well if the is it appropriate for a california basically then your fundamental position that it's illegal for individual voters to agree to vote it may be a technical violation but again you know the technical i mean is well is that a violation or not i mean is that the kind of thing that you could go after somebody who are engaging in the can criminal conspiracy to corrupt the election process or whatever the statute is director that sure you're on i think you keyed in on the key is corruption both these election code provisions that appear under division six of the elections code which is the title corruption of the voting process its title right here so i think we know that the fundamental purpose behind these two pr correct the electoral process in california or yours telling me that i cannot agree to with my family member that gore's going to win here anyway sure i'll be glad to vote for nader if you decide enforce too so i'm trying to understand is that the transaction or the enabling of the transaction secretary just focused on the enabling of this transaction because and that's all exactly ok so then the answer to my question is if i think tell me if i'm wrong that if the website's continued and they did not enable they simply set up a chat room and said if any of you folks in you independent judgments want to go ahead and vent your frustrations with the electoral college system or the whatever it is for the you know the spoiler role that nader may play  we encourage you to go ahead and you know agree that you should swap vote or not brokering it there just advocating it and the people on the way in the chat room are saying hey that's a hell of a good idea let's do that i don't leave the elections  hypothetical i would concede that you're ok so bringing it back to the real case what we did have here was a website that was clearly communicating on behalf of the website operator a political point of view about at the electoral college or the you know the spoiler whatever i mean i didn't go back and look at the website so i don't know but it was communicating a point of view about the electoral process and coming up with a suggestion that people trade votes right correct and if that's all it did you wouldn't be shutting down the website presumably i believe that would be true ok and so now that they have taken the next step you say and they not for purposes of the the analysis in this case your honor i think this is more analogous to what the supreme court recognized in brown the heart which is that although agreements to engage in unlawful conduct  do contain an expressive element simply by verbalizing the agreement the first amendment is not transferred upon one and the government has the ability to prohibit such an lawful agreements and in the agreements or the conduct in that s e there was the payment of money there was a payment of money but the court went beyond that in their analysis and said generally these types of agreements if it weren't in brown the heart which was a promise to work for everything salary i believe they were going to now putting ourselves back in the secretary of state's position is trying to prevent generalization corruption of the electoral process he relies on a state statute to state status doesn't rely on the fraud stature correct i believe that's true ok so do we analyze this case strictly in terms of his authority under california law to do what he did under those two statutes i don't think this court is limited in any sense if we if we're going to apply any test down the road during the course of this oral argument i don't think this court is limited to what the compelling government interest might be here preventing voter fraud the secretary felt was sufficiently covered by application of these two election code provisions that there wasn't a vote against but the problem is confronted with is a fairly unique fact pattern a statute that is rather ambiguous at least in terms of what valuable consideration is we have to i think it looks like we would have to interpret california law indeed to get to where you want to correct if you know the words let me put it this way this is what police blotter you mean why are we into the constitutional arena if the secretary of state doesn't have authority under california law under the two statutes he invoked to take the action he did but a few is wrong that that this constituted a violation of  the valuable considerations that you were under early on i believe in early two thousand during this case the state commits the district court who pardon me the district court agreed to abstain in this matter given that this was interpretation of fight of the california supreme court as to whether secretary of state had that authority perhaps your honor we did not brief that issue but nevertheless i'm i believe it is a fundamental interpretation of california's law under california law and if this court inclined i believe the secretary of state's office would certainly have no objection so what do you what do you think is the decision we're supposed to come out with or in this case assuming we don't certify certainly honor i believe the primary kind of determining that that's going to bring back the end of the original question i just want to stand where you are sure if if we were to conclude that no they didn't you say somehow we have to go beyond and decide whether or not he could have acted under some others that you like an manner i think it would the court should go on you can talk and analysis as to whether or not there is other inherent authority under which the secretary of state could have acted in order to stop this these crushing practices that's where the qualified or are we talking here about the violation of the first amendment they would be talking about the violation of the first amendment i believe your honour's have it just to me we may not have to address the need and it may not be for us to decide whether the california provisions apply even if we decide that the election code provision should not be interpreted as the secretary of state mr jones apparently understood them at the time so that they shouldn't of threaten about fraud here i want to make sure i understand what the reference to is that the reference to the possibility of somebody elsewhere trying to game the system and cause california voters to not get what they bargained for that is be fooled into voting for one candidate instead of another correct judge fisher's evil bush administration so when you say fraud you're not referring to the vote swap operation as properly intended that is you're not saying that broadest specifically aimed at somebody being duped correct the record demonstrates with plenty of evidence or honor that there is simply no way for these website operators to deter operators to determine whether or not say a felon living in other states elections the record doesn't demonstrate that your honor but the record does show was that the conduct at issue that was addressed by secretary jones was occurring right here in california is that myself and my friend were sitting in a coffee shop discussing stealing a car and know that it does not last make our conduct less unlawful let's get specific suppose someone setting out to steal an around they decided to meet at one of those and they do a deal that buys a california vote california law apply to that even though the act explains some nevada i think california law would apply to the ultimate crime which portion i just like california somebody somebody is relying a california election but there is a vote in a california election but they're doing it at harrah's in nevada and i can understand that and i don't think there's a method to this madness there really is but i think i could i take it you would probably say that california is entitled to in full force it's a code on a vote purchased intended to affect the california election if the actual deal is made in nevada and you catch it before the voters actually cast or something yes so there's little doubt that california completes its elections the other one strikes me as possibly harder and i think it's the challenge being raised in the dormant commerce does california simply because the proprietors of votes two thousand happen to be in los angeles or of we don't know exactly that the letter is sent to the website because they don't know exactly where it is but  in california does that give california a basis to say it has a legitimate interest if they knew that wasn't going to affect california because they tested it and turns out it doesn't work here in california but does work if you're in florida and new jersey you say that california and the secretary of state still intended to preclude that because you thought the fact that they were geographically and in california gave the california statute of regulatory control over correcting the conduct itself was a violation of the statute that the ultimate actions were going to take place out of state and certain instances does not tie the hands of california your honor i think the public policy implications and there are vastly beyond just the they finally said was we don't think that's a violation the problem was matching people up in volume that idea stands the first amendment on its head if what you and your brother in law arguing is protected political speech and association the mere fact that a website makes more people able to do it in fact should be applauded and that makes it more protected by the first amendment than it is simply to say well it's fine if you do it in small numbers but the minute you make lots of people able to do it or are able to engage in th discussion that's illegal that position makes no sense whatsoever and the heart of our position is the problem here is not the promise what you do with your brother in law i keep using that i have no idea what you and your brother  and the fact that these web sites made it easier for other people beyond their family members to do this is not a first a man it would be interesting with the first amendment just say that if a few people can do it it's ok it's protected but when you allow more people to do it it becomes illegal it brings me back to my five twenty seven hypo where the government seems to be saying it's ok if you do one of the one voter turnout but if you set up a web site that allows you judge brokering and its corruption of course it isn't it's actually spreading the internet is the promise of the internet to spread speech in communications to broader levels it is not brokering and corrupt to for you to get information about a voter in respect to opposing counsel is in the end you make the decision when i heard and understood your question to be was suggesting that there actually is absolutely nothing wrong for you for you to have that conversation in agreement with your brother in law that is correct i believe there is no corrupting in interest involved and if it's ok for you and your brother in law it's ok for me and somebody else to use the internet to do it and i think that that's what brown versus heartless and the campaign contribution limit case to stand for that's the principle promises that involved fewer financial benefit outside the political process may be restricted promises of mutual political benefit alone may not be restrictive consistent with the first amendment that may make one other point with respect to the