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Eye On Olympia

Ninth Circuit: “…vote-swapping is a constitutionally protected activity”

Seven years after one of the closest presidential elections in American history, a three-judge panel of the Ninth Circuit Court of Appeals ruled today that it was OK for swing-state voters who wanted to vote for Ralph Nader or Pat Buchanan to agree to "swap" their protest votes with voters in lopsided states (this means you, Idaho) where the outcome was virtually certain.

That way, organizers argued, Nader would have a better shot at getting the 5 percent needed for federal funding in future elections while Al Gore's odds of winning improved in critical battleground states, including Washington.

To facilitate these voter-to-voter pacts, organizers created and (The former has been lost to godaddy oblivion, but voteexchange2000, incredibly, remains online, if dormant. Note the "Curious about what we have planned for 2004?" request for your email address.)

Shortly before Election Day, however, California's then-Secretary of State Bill Jones threatened prosecution of, alleging that the site broke California election laws. The website operator, William J. Cody, immediately disabled the vote-swapping feature on the site, which matched swing-state voters with "blowout state" voters. The other website, as a precaution, did the same thing. (Cody also alleges that he developed back problems as a result of the stress, causing him to need the services of a chiropractor.)

A district court judge refused to issue a restraining order that would allow the sites to keep operating through the election. A seven-year court fight ensued.

Today, the court found that Jones violated the vote-swap organizers' First Amendment rights, with Judge Raymond C. Fisher writing:

"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."

Interestingly, state election officials were split on whether vote-swapping was illegal. Those in Oregon and Minnesota sided with Jones. But the secretaries of state in Maine, Michigan and Nebraska concluded that the swaps were, in fact, legal.

Things would be different, the court said, if someone set up a website offering people cash to vote for a particularly candidate. Vote swapping is a "meeting of the minds," the court said, with no private benefit beyond a very slight chance of tilting an election toward one's favored candidate.

"…Such agreements plainly differ from conventional (and illegal) vote buying, which conveys no message other than the parties' willingness to exchange votes for money (or some other form of private profit),"

the court wrote Monday.

Stay tuned for 2008. And as of this writing, is still available for registration.

(Thanks to Josh at The Slog.)

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