Guest Author - Tracey-Kay Caldwell
During the 2000 presidential election, when Bush and Gore were competing for the office of president, vote-sharing sites sprung up. These sites would allow third party supporters of Nader to trade their vote with someone in a “safe state.” The goal of these sites was to give Nader as many votes as possible without electing Bush to the presidency. These sites were promptly shut down by California Secretary of State, Bill Jones. He sent letters to the Web sites threatening them with prosecution for "vote-buying,"
On August 6, 2007, the 9th Circuit Court of Appeals ruled that the "vote-swapping" web sites were protected by the First Amendment. The argument put forward by the ACLU of Southern California and the National Voting Rights Institute, on behalf of the website operators Alan Porter (voteswap2000.com) and William Cody (voterexchange2000.com) and two individual voters, Patrick Kerr and Steven Lewis, asserted that the threats by Jones violated the First Amendment rights of the website operators and exceeded the scope of Jones’s authority under California’s election code.
Although third party candidates’, Nader and Buchanan only secured 3.1 percent of the national popular vote, there was concern that in “swing states” the vote might be swung by the support of a third party candidate. In the United States, a small number of third party votes can prove decisive in an election, because in most states we have “winner takes all” rules, that award all the electoral votes for the state to the candidate with the most votes in that state. This makes it possible to win the popular vote on a national level, and still lose the presidency. Nader’s supporters did not want to hand the white house to Bush, but they also wanted to assure that Nader got the five percent of the vote he needed in order to qualify his party for federal funding in future elections. Vote trading seemed the perfect solution.
The vote swapping websites warned that there were no guarantees since voting is a private matter, your agreement to swap was based on trust. The websites made it possible for you to meet people in other states, to trade emails, and establish that trust relationship. The court ruled that this act was an expression of support for a candidate and a promise to vote for a candidate and that is protected speech. The court distinguished these site’s actions from a vote 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. They likened this vote exchange for public profit, to a candidate’s pledge to take a pay cut if elected, and “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.”
Who knows how the election might have turned out if these sites had been allowed to remain up? However, with this kind of speech now protected, it will be interesting to see if vote swapping has an impact on future elections.