Burden of Proof

Bidding for Ballots: Democracy on the Block

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: In just two weeks, the citizens of the United States will elect their next commander-in-chief. But could that decision be rerouted over the Internet? A Web site engineered halfway around the world is offering to literally buy your vote.

Today on BURDEN OF PROOF: bidding for ballots, democracy on the block.

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

COSSACK: Hello, and welcome to BURDEN OF PROOF. Yesterday on the campaign trail, George W. Bush proclaimed that W stands for women, Wisconsin, where Greta is from, and win. Three W's also serve as that familiar prefix for our journeys along the information superhighway, World Wide Web.

GRETA VAN SUSTEREN, CO-HOST: But the race for the White House between Bush and his opponent, Vice President Al Gore, could be vulnerable because of the Internet. A Web site run by an Austrian holding company has been offering to buy American votes in this November's election.

COSSACK: www.vote-auction.com was shut down over the weekend under the order of a Cook County, Illinois judge. But Saturday night, the site resurfaced under a slightly different name, suggesting voters ask for a donation this time instead of selling their votes.

VAN SUSTEREN: Joining us today from Philadelphia is Scott Hemphill, who is the general counsel of Domain Bank, which, along with vote-auction.com, was named as a defendant in a lawsuit in Chicago. In Los Angeles, we're joined by Internet law professor, Stuart Biegel.

COSSACK: And in Sacramento, California, we're joined by William Wood, chief counsel to the California secretary of state, where I'm from. And here in Washington, Melissa Stratton (ph), constitutional law expert Bruce Fein, and Anthony Acocella (ph). And in the back, Al Peterson (ph) and Erin Maloney (ph).

Well, first I want to go right to you, Scott, as the representative of Domain. Why are you being sued in this lawsuit? Why are you a defendant?

SCOTT HEMPHILL, DOMAINBANK, INC: Well, I think it is a case, sort of a classic litigation tactic of casting a wide web. We are the domain name registrar. It's easy to find out who we are by doing a look-up on the Internet on the domain name.

COSSACK: Well, tell us exactly what a domain name does. In other words, this is a situation in which they are claiming that this Web site is purchasing votes.

What do you have to do with the Web site?

HEMPHILL: Very little, all we do is provide a mechanism for people to find the Web site. Basically a domain name registrar interfaces with the database, the central database that's maintained in Virginia, where a domain name is tied to an IP address. In other words, if you go to your browser, you type in CNN.com, your browser looks in the database and finds the IP address where the Web site is located.

VAN SUSTEREN: Scott, let me just stop for a second. I mean, you say it's a typical litigation tactic. The Domain Bank has a contract with this Web site that we are talking about and one of the deals is that the Web site follows the law, and apparently the reason you got dragged into this is because, while sitting on that contract, you're also sitting on your hands and not doing anything about it.

HEMPHILL: Well, that's not true. Actually we were the ones that took the site down.

VAN SUSTEREN: Did you put it back up under a new name Saturday night?

HEMPHILL: No, what they did, and I explained this to the attorneys for both California, Bill, and Jim Scandlin (ph) in Chicago. It is very easy to get another domain name through another domain name registrar and point it to the same Web site. And as long as you get the world out where the new Web site is, someone can just type that in.

VAN SUSTEREN: Did you take it down after the judge ordered you to take it down? This wasn't some sort of magnanimous, let's-follow- the-law-type decision, at first, was it? The judge sort of encouraged you, did he not?

HEMPHILL: Well, we'll step back. We were contacted by Bill Wood about a week before the judge gave us the order. Bill sent us a very nice letter that said that we were involved with a Web site that was engaged in illegal conduct, and that Domain Bank would be considered engaged in criminal activities and we needed to take a hard look at it.

So, what we did was we sent a notice to the registrant, Mr. Bernard, that said we had been contacted by California, accusing him of engaging in illegal activity on the Web site. As he knows, pursuant to our agreement with Mr. Bernard, he's precluded from engaging in illegal activities in connection with the domain name.

VAN SUSTEREN: Were you aware of the fact that earlier, and I don't mean to beat a dead horse, but earlier in New York had made a threat to seek action against an American who was involved in this earlier in time?

HEMPHILL: Actually not, no.

VAN SUSTEREN: OK.

HEMPHILL: This was the first that we learned about it. And just so I can finish, we sent the notice, basically saying you've got 30 days to either comply with the California law or tell us why you think you are in compliance with the law, and you're not in breach of the agreement.

VAN SUSTEREN: Did that 30 days take you past the November seventh general election?

HEMPHILL: It would have, however that was what we did.

VAN SUSTEREN: All right, well, let me go to Hans Bernhard who is the -- by telephone -- who is the man who owns vote-auction.com.

Hans, can you hear me?

HANS BERNHARD, OWNER, VOTE-AUCTION.COM: Yes, hello.

VAN SUSTEREN: Hans, why in the world do you think it is any of your business to get involved in this American election?

BERNHARD: Yes, we are interested in providing a forum in order to create a perfect market. That's also our slogan, bringing capitalism and democracy closer together. This is actually our task and we see this as a worldwide operation. The U.S. election is just a test pilot for us in order to do research, in order to bring out this perfect market.

VAN SUSTEREN: Does your Web site buy, sell, solicit, ask for donations, or use anything else in terms of getting American votes?

BERNHARD: No, we don't do that. We are just a plain forum for campaign contributors and voters to come together for free market exchange. That's all what we do.

COSSACK: Tell me exactly, sir, how that you attempt to accomplish this. As I understand it, prior to having your Web site taken down before, you would -- if I wanted to, I could sell you my vote, and then you would take that vote and then, I suppose, turn it around and sell it to the candidate who would pay you the highest amount of money.

Why isn't that just flat voter fraud?

BERNHARD: No, we don't buy or sell votes. We don't do that. We just facilitate a platform where we want to have this market done. And we see that there is a big future for this. We bring this business to business. You know, we have consultants. They cut like 10-15 percent for themselves, and they sell a vote to the campaigns. VAN SUSTEREN: All right, let's go -- let me please interrupt you for one second and go up to Bill Wood from the state of California.

Bill, is what Hans Bernhard is doing, is that, in your view, illegal under California law? What is it that you contend is illegal, if indeed it is.

And also the whole idea, which I must admit, I'm a little fixated about someone from another country interfering or doing anything in an American election.

But go ahead, Bill.

WILLIAM WOOD, CHIEF COUNSEL, SECY. OF STATE OF CALIFORNIA: Very briefly, what this individual has described is illegal in California. The basis in California, of course, of your vote, is that you cannot sell it, you cannot offer to sell it, you cannot buy people's votes. That has been the law in our state for some time.

VAN SUSTEREN: Is it a quid pro quo, though? Or how different is it from this, sort of, like, you know, you give your $1,000 campaign contribution on November sixth and November eighth you show up at your Congressman's office and say: Remember me? I'm a big contributor. I would like to talk to you about some project? How is that different?

WOOD: Well, it's absolutely different because it's fundamentally different. The actual buying of the vote is just that. It is that simple. It is the buying of some individual's vote. One of the things in the United States that we have prized above all is the vote. It is an inalienable right. And in every state in the United States, to my knowledge, the process of buying or selling votes is illegal. It is a federal violation.

And in California, you've heard from Scott Hemphill, and I have to say very quickly that Domain Bank was very cooperative with our efforts to stop this abuse of the Internet. Here in California, we are engaged in criminal investigations of this organization. We will continue those investigations through the election and any Californians...

COSSACK: That means you're investigating people who might have sold their vote, too. Is that true?

WOOD: That is absolutely correct.

COSSACK: So, Americans who sold their vote to Hans would be part of a conspiracy.

WOOD: They would not only be part of a conspiracy, but in and of themselves, they would have directly violated California law. And let me again be quite clear...

VAN SUSTEREN: Let me interrupt you for one second because we have to take a break. We'll be right back.

And I also -- when we come back want to give Hans a chance to explain whether this is a sale or purchase.

We will take a break and be right back. Stay with us.

(BEGIN LEGAL BRIEF)

On Monday, a federal judge said that it was up to the local courts in Puerto Rico to decide whether or not Puerto Ricans can cast their votes in the presidential election on November 7.

Election officials say it will cost about $3 million to print, distribute and tally the extra ballots.

Pro-independence activists argued the vote would be a waste of money.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to CNN.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

VAN SUSTEREN: Last week, an Illinois judge shut down a vote- buying Internet site. But the Austrian company which runs the site added a hyphen to its domain name and reopened for business Saturday night. Instead of offering to buy votes from American citizens, the site allows voters to ask for donations.

Hans, how much money has your site made so far?

BERNHARD: Yes, our Web site vote-auction.com has not made any money yet. We don't buy or sell. And to Mr. Wood, you won't find a California resident who bought or sold votes over our Web site. It just clearly didn't happen.

VAN SUSTEREN: What is the purpose of your Web site, then? What does it -- does it broker votes? What's the purpose?

BERNHARD: I don't know. I mean, at the moment, in order to reply to Mr. Wood, I should -- it comes off to me that to think how strong is democracy if it has to go with very repressive methods like against the Maine Bank (ph), which is obviously a way in order to shut us down. And we have free speech here and we don't see why this weakness of democracy. Why can't we attach capitalistic principles to this kind of voting industry which is currently going on?

And the other thing to your question, I mean, this is a very, very flexible venture at the moment, very highly dynamic. So we are just finding out new ways and we're working very tough on this on the technical side. We're doing software updates and we'll find legal ways in order to bring this market to the American people, but also to other people in the whole world. COSSACK: Let me now go to Stuart Biegel from the UCLA School of Law, fine place that I myself personally went to.

Stuart, besides that plug, let me just ask you, is there anything at all that could be in any way interpreted as being legal about what this operation is? I mean, is there any way under American law that someone could sell their vote?

STUART BIEGEL, INTERNET LAW PROFESSOR: Well, selling votes is not legal. We need to start with that. But the question is, is that really happening here? This site started as a masters thesis and was sold to Hans. Clearly Hans has stated that they're not actually buying and selling votes. So, in reality, this could just be a form of satire or street theater, and if so, arguably protected under the First Amendment.

COSSACK: But Stuart, you're not suggesting that if Hans would -- if I went to Hans and said, listen, I'd like to sell you my vote, he would turn me down. I mean, if that's true, what's the whole purpose of this, then?

BIEGEL: Well, you know, this has been written up in a lot of the online media. There's a suggestion that this wants to call attention to the fact that, on some larger level, votes are bought and sold in this country even as we speak.

VAN SUSTEREN: Bruce, you want to...

BRUCE FEIN, CONSTITUTIONAL LAW PROFESSOR: Well, I think the, you know, the argument that we heard from Hans is like the duke and the dauphin in "Huckleberry Finn": it's just flimflam out there. We don't -- hey, this guy isn't Mark Russell who charges and have -- listen to the satire. It seems clear he thinks that it's free market capitalism if you act as a broker even if it's brokering babies or slaves or votes. And the fact that he may not personally pay the money for the vote doesn't exonerate him, his whole -- the whole purpose of the enterprise here. And, again, it's not advertised as spoof or satire. He has to try to put together willing buyers and willing sellers in order to corrupt an election. That's how he calls attention to it. There's no free speech argument.

COSSACK: Well, what if the purpose was satire? What if the purpose was saying, look, the election -- the way election financing goes on in this country today is perhaps one step away from the direct buying and selling of votes? And what if that was the purpose of this?

VAN SUSTEREN: Well, I don't think -- I mean, I don't think there's anything wrong, Roger, with satire. I mean, of course not. But if you go over the line and there actually at some point becomes a market...

FEIN: Well, I think your point is a good one, Roger. If this was on a cartoon and you showed it on the weekend or something and there was -- clearly you had cartoon characters, then you have a strong claim that no one really would understand this as being a serious proposition. Now, according to some news reports, this guy got 3,000, 4,000 requests to sell votes. That doesn't sound like people who are just doing this...

(CROSSTALK)

COSSACK: But what does it say about us?

FEIN: Well, that may be, but it shows it's not a spoof.

VAN SUSTEREN: Bill, is there any chance that this is just a parody or a spoof? I mean, you've taken this pretty seriously in California.

WOOD: Yes, and that's -- actually, that's the point I wanted to make very clear. Whether this is a parody, whether this is a confidence scheme that this man is running, it makes absolutely no difference whatsoever in California.

VAN SUSTEREN: Why?

WOOD: When you're talking -- because you're talking about the corruption of the voting process.

VAN SUSTEREN: But what if it's a big joke and nobody -- there's been no exchange of money...

WOOD: But that's the whole point.

VAN SUSTEREN: ... hasn't made any money. I mean, what if he hasn't made a dime and it's sort of an...

WOOD: Well, that's -- but that's -- I think you're missing the point here. The point is it's not a joke. Whether or not he views it as a parody, whether he's doing something to make money for another reason, that is really immaterial. California law as well as the law in many, many other states...

VAN SUSTEREN: Maybe it's bad humor. But I mean, Bill, Bill...

WOOD: Yes.

VAN SUSTEREN: There's a difference between committing a crime and bad humor. I mean, where is -- under California law, for instance, where is the crime?

WOOD: The crime is very simple. It's defined broadly in California as it is in almost all states across the country. The offer to buy or sell a vote through another or by yourself is a criminal offense. And these are not mere misdemeanors, lower level crimes, these are always felonies. These are viewed as felonies by the federal government as well.

So I think the point is very simple: When you're talking about the vote, this is not an area where the free market or capitalism has any applicability whatsoever. VAN SUSTEREN: I agree with you on that, it's just that all of a sudden, I mean, it occurs to me that if this is a parody and a joke versus whether this is, you know, a real site...

FEIN: But, Greta, I think what discredits the idea that it was a parody, if everybody understood that it was a joke, they wouldn't be visiting the web site and offering, at least in nontrivial numbers, their vote for sale.

COSSACK: All right, let me...

FEIN: Now, other cases would be harder.

COSSACK: Let me jump in here and take a break.

Up next, now that we've crossed that bridge into the 21st century -- and we have -- is electronic voting just beyond the horizon? Stay with us.

(BEGIN Q&A)

Q: A Massachusetts law banning what art form has been deemed unconstitutional?

A: Tattooing. The tattoo ban, which dates back to the 1960s, was challenged by residents of Martha's Vineyard who claim that marking the body is a protected form of expression.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: A vote-buying Web site has sparked debate over new technology and the borderless business of the World Wide Web. But the Internet could make voting more accessible to Americans and hopefully increase voter turnout.

Hans, I want to, sort of, put this to rest. You have been defended by someone here who is suggesting that, perhaps, you weren't serious with this Web site, that what you were trying to do was parody the American voting system and, perhaps, the way it's financed.

Was that your intent?

BERNHARD: Yes and no. I mean, it's come to the point of three months of doing massive, 10, 15 interviews per day on this topic. It definitely comes across that we are making a point.

So, again, to reply to this individual in California: We are in a very flexible -- and this has made the difference -- we are the Internet generation, we are working on the different conditions. It's very flexible and fast-market and we see a long-term chance in bringing this marketplace...

VAN SUSTEREN: Hans, have you had success in the sense that there are some Americans who have offered to submit their votes and offered to buy the votes? Have you had any success that way, is there any interest?

BERNHARD: I do think we have a lot of traffic on our platform as we monitor it. As I said, our software is just being updated; we don't have correct data at the moment, I can't properly answer you.

And also, in terms of legal activities which are going on, I don't want to go too deep into this topic. We've got a lot of reaction, we get a lot of reaction -- very polarized, you know...

VAN SUSTEREN: Stuart, it doesn't like -- to me, like this is totally parody. I've now moved back. This sounds a little bit like a business enterprise, and there's a lot of interest.

This doesn't exactly sound like good humor or bad humor, this sounds like, you know, interfering with an election.

BIEGEL: Well, when you conspire under the law to commit a crime you have to be serious. If two people...

VAN SUSTEREN: He said that it's yes and no -- I mean, you know. It was the "yes" part I'm focusing on that -- I mean, the "no" part, I guess it was.

BERNHARD: I'm serious about the legal side of it, absolutely, but it just came down like a hammer. I mean it was -- to turn off the domain bank is clearly very repressive stuff.

And there was no discussion going on. In the legal matters, there were some kind of really pathetic, Democratic point of view. But the Internet has changed people and the market.

COSSACK: All right, let me interrupt you a second; I want to go to Bill Wood.

Bill, suppose that I go to a politician and say the following: You know, I'm prepared to donate $1,000 to your campaign, but I am particularly interested in the zoning around my house. I want to make sure that it remains the same. And my representative says, you know, I understand exactly what you're talking about and I need the $1,000 for my campaign and I give it to him; and two days later, you know what, he sponsors a law that keeps the zoning around my house the same.

What's the difference here?

WOOD: Well, I mean, if you're actually going to describe the crime of bribery, that's a separate kind of a crime -- but that's not what we're talking about here, and that's not what this foreign company is talking about.

And let me also be clear about your first question about the possibilities of the Internet as far as voting go. Here in California, Secretary Jones, Bill Jones, has been really the innovator in applying the Internet to government; and just yesterday he was in San Diego as part of a test of a five-county shadow election that's going to see about the applicability of the Internet as a voting instrument. So he is very avidly pursuing that here in California.

But, just let me finish quickly...

VAN SUSTEREN: I know, you're telling us about what they're doing on the Internet but, unfortunately, we're out of time. That's all the time we have for today. Thanks to our guests and thank you for watching.

Tonight on CNN "NEWSSTAND's: Pulse of the Nation": school shootings like the tragedy at Columbine captured the nation's attention last year. But is gun control even an issue in this election? Phone-in and send us your e-mail and then tune-in at 10:00 p.m. Eastern time.

COSSACK: And today on "TALKBACK LIVE": polls and the election; are there too many polls and do they affect the votes? Send-in your e-mail and tune-in at 3:00 p.m. Eastern time.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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