The Election That Refuses To Die: Ninth Circuit Refuses En Banc Rehearing in Vote Swapping Web Site Case

Last August, the Ninth Circuit ruled in Porter v. Bowen that Web sites that enabled "vote swapping" amongst voters in the 2000 presidential election were protected by the First Amendment. As we related in our prior blog on the case, the vote-swapping plans of the Web site organizers were 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 a panel of the Ninth Circuit disagreed and ruled favorably on the merits of the organizers' First Amendment claims.

Yesterday the Ninth Circuit refused to rehear the case en banc, over the objection of Judge Kleinfeld, joined by Judges Bea and O'Scannlain. Judge Kleinfeld's opinion dissenting from the denial of the petition for rehearing en banc presented the issue as follows:

This case is about whether the First Amendment protects from prosecution people who buy votes. Instead of cash, or beer and cigars, the buyers offered promises. The special twist, a very important one, was that the purpose of the scheme was to effectuate what amounted to people voting in states other than their own. The not very special twist is that instead of standing around the polling place to buy votes, or chartering buses to bring voters to other states, the scheme used internet sites to enable people to exchange promises. The deals were in the form, "if you promise to vote for my preferred candidate in your state, I will promise to vote for your preferred candidate in my state."

The promises of people utilizing the Web site were not mere words, the dissenting judges argued, even if they are not enforceable:

The exchange of promises is an ordinary means of making a contract, whether legal or illegal, and no one has doubted for centuries that promises form consideration for contracts. Contracts are how people buy things of value, sometimes promises to sell goods in exchange for promises to pay, promises of quantity discounts, or, as in this case, promises to vote for the other person’s preferred candidate. The panel considered it important that the vote-swaps operated "without money changing hands," but a promise is consideration whether it involves cash or not. The California statutes, like those of all the other states in this circuit, prohibit vote buying for consideration other than money, as well as for cash. Of course, the buyer of the vote may be cheated by secret nonperformance of the promise he bought, and have no legal remedy, but a promise is good consideration even if the promise is unenforceable, and even if it is "not binding or against public policy."

People who want to influence an election, the judges commented, should get off their duffs and do it the old fashioned way, not set up a vote-swapping Web site:

If people in one state want people in another state to vote a particular way, they can go there and ring doorbells, send them letters, buy advertisements on their media, publicize arguments on the internet, and otherwise explain to them why they ought to vote a particular way. But they do not have a constitutional right to buy their votes, with money or promises.

The refusal to rehear the case en banc does not finally dispose of the case, of course. There is the possibility of a petition for certiorari to the U.S. Supreme Court, although it seems unlikely that the Justices will want to revisit issues involving the 2000 presidential election.