Court Case Of The Day

Ken AshfordConstitution, Election 2008Leave a Comment

The Ninth Circuit has held that vote-swap sites are protected by the First Amendment.

What’s a vote-swap site?  The Ninth Circuit explains:

Appellants created two websites, and, that encouraged people to “swap” their votes and provided email-based mechanisms for doing so. The vote-swap mechanisms enabled third-party supporters in a swing state such as Florida or Ohio to agree to be paired with major-party supporters in a “safe state” such as Massachusetts or Texas, whereby the swing-state users would promise to vote for the major-party candidate and, in exchange, the safe-state users would promise to vote for the third-party candidate. The point of the swaps, at least when agreed to by Nader and Gore supporters, was to improve Gore’s odds of winning the Democratic-pledged electors in the swing state without reducing Nader’s share of the national popular vote (which needed to exceed five percent in order to qualify his party for federal funding in future elections).

The California Secretary of State demanded that the sites be taken down, and the appellants complied, but they sued.  Now, the Ninth Circuit has said that the websites are protected under the First Amendment.

Vote-buying is illegal.  But the court made a distinction between vote-buying and vote-swapping:

The Supreme Court held in Brown v. Hartlage, 456 U.S. 45, 55 (1982), that vote buying may be banned “without trenching on any right of association protected by the First Amendment.” Vote swapping, however, is more akin to the candidate’s pledge in Brown to take a pay cut if elected, which the Court concluded was constitutionally protected, than to unprotected vote buying. Like the candidate’s pledge, vote swapping involves a “promise to confer some ultimate benefit on the voter, qua … citizen[ ] or member of the general public” -— i.e., another person’s agreement to vote for a particular candidate. And unlike vote buying, vote swapping is not an “illegal exchange for private profit” since the only benefit a vote swapper can receive is a marginally higher probability that his preferred electoral outcome will come to pass….

Now that it is apparently legal, one wonders if we’ll see this phenomenon take root in the ’08 elections.