Vote-Swapping Web Sites Held Protected By First Amendment

You probably thought that the litigation fallout from the 2000 presidential election was long over by now (remember "hanging chads"?) but that's not the case. The Ninth Circuit today released an opinion addressing an issue first raised only a few days before that election, i.e., whether Web sites that encourage "vote-swapping" are protected by the First Amendment. It ruled that they are.

Recall that in what was expected to be (and was) an extremely close race, supporters of candidate Al Gore sought to harvest votes from the supporters of third party candidate Ralph Nader. Here's what was afoot, as described in Porter v. Bowen, No. 06-55517 (9th Cir. Aug. 6, 2007):

It was in this highly charged political atmosphere that Appellants created two websites, voteswap2000.com and votexchange2000.com, 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 vote-swapping plan was abandoned when Bill Jones, then California Secretary of State, threatened the organizers of one of the vote-swapping Web sites with criminal prosecution under various California election and penal laws. Three of the vote-swapping organizers subsequently brought an action against Jones in federal court seeking declaratory and injunctive relief, and damages. The case was twice declared moot, but the Ninth Circuit disagreed and ruled today on the merits of the organizers' First Amendment claims.

On the merits, we hold that Jones violated Appellants’ First Amendment rights. The websites’ vote-swapping mechanisms as well as the communication and vote swaps they enabled were constitutionally protected. Although California certainly has valid interests in preventing election fraud and corruption, and perhaps in avoiding the subversion of the Electoral College, these interests did not justify the complete disabling of the vote-swapping mechanisms. Because we conclude that Jones’ actions were not sufficiently tailored to advance the State’s legitimate interests, we do not reach Appellants’ further claims that those actions were an unconstitutional prior restraint, violated the dormant Commerce Clause and were ultra vires under state law.

The court carefully distinguished the voluntary agreements between voters that were facilitated by the vote-swapping Web sites from unlawful vote-buying:

Both the websites’ vote-swapping mechanisms and the communication and vote swaps that they enabled were therefore constitutionally protected. At their core, they amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of voters in closely contested states. Whether or not one agrees with these voters’ tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.

According to the plaintiffs, they are interested in organizing vote-swapping Web sites for the coming presidential election in 2008, although there is no mention in the opinion of exactly who would be swapping votes with whom. They'll need new domain names. FYI, votexchange2000.com is still up and running, but voteswap2000.com is in the domain name graveyard, "parked free, courtesy of GoDaddy.com!"