Imagine that someone created a web site with the sole purpose of allowing voters in one state to "swap" preferred candidates with voters from another state: would such a site count as illegal vote-tampering? The question is not hypothetical. Several sites like this sprang up in advance of the 2000 presidential election and were promptly smacked down by legal threats emanating from the office of Bill Jones, California's then Secretary of State. Yesterday, the Ninth Circuit Court of Appeals ruled on the legality of vote-swapping sites and found that Jones was wrong to threaten them with prosecution. The practice is legal.

Voteswap2000.com and Votexchange2000.com were both set up in order to allow voters in "swing states" to swap votes with voters from "safe states." The idea here was that the swing state voters could still cast their ballots for a third-party candidate (such as Ralph Nader) without endangering the Democratic candidate (Al Gore) in their states. Although Nader was in no danger of winning the presidency, votes were still crucial because his party hoped to exceed the five percent threshold for receiving federal election funds in the next campaign.

The arrangements were quite informal. The web sites simply matched up interested voters and put them in touch via e-mail. It was also a system based on trust, since there was no way to tell if the vote swap had actually been carried out.

Voteswap2000.com, the largest of the sites at issue here, signed up 5,041 users in only four days. On that fourth day, it received a letter from California's Secretary of State that informed the site operators, "Your web site specifically offers to broker the exchange of votes throughout the United States of America. This activity is corruption of the voting process in violation of Elections Code sections 18521 and 18522..."

The site shut down almost immediately.

But the people behind the vote-swapping web sites then brought suit against California. If anyone still requires evidence that the legal process can move slowly, consider that this case was filed on November 2, 2000. After some back-and-forth between different levels of the court system, a district court eventually ruled in California's favor, and the site operators then appealed. The Ninth Circuit Court of Appeals opinion in the case, Porter v. Bowen, has just been released, and the court overturned the district court ruling, concluding that then Secretary of State Bill Jones "violated Appellants' First Amendment rights" and that such vote-swapping mechanisms are constitutionally protected.

The court found that such activities involved the discussion of people's opinions on political campaigns and on candidates, which are protected by the First Amendment. Vote-swapping also differs from outright vote buying "which conveys no message other than the parties' willingness to exchange votes for money." Vote-swapping conveys a clear political message about the nature of third-party campaigns in the US winner-take-all electoral system.

Eugene Volokh, commenting on popular legal blog The Volokh Conspiracy, agrees with this analysis. He points out that people trade "something of value" for votes all the time without those actions becoming illegal, whether it be votes or endorsements. The point, he says, is that "one can't simply equate trading votes for money with trading votes for other votes."

Given the court's ruling, it's quite possible that we will see such sites again during the 2008 election. Whether they will make any appreciable difference to the outcome remains to be seen.

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