9th Circuit: Vote-Swapping Arrangements Protected by First Amendment

Pamela A. MacLean

The National Law Journal

Third-party candidates take note for the upcoming presidential election: The First Amendment protects vote-swapping arrangements.

The short-circuited campaign in 2000 to arrange vote trading between supporters of presidential candidates Al Gore and Ralph Nader died when California election officials threatened the online sites with vote buying charges.

A federal appeals court back in December said California's action violated the free speech rights of people who wanted to swap votes. On Thursday the full court refused to back off that position, over the objection of three conservative judges, Porter v. Bowen, 06-55517.

Judge Andrew Kleinfeld of the 9th U.S. Circuit Court of Appeals called the practice vote buying plain and simple, and thus illegal. But only two other judges joined his dissent from the full court's denial of en banc reconsideration Thursday. It takes 14 votes to win reconsideration.

The idea behind the 2000 voteswap.com Web site and others was that people exchanged promises. "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 swap, which would be impossible to police, gave Gore votes from Nader supporters in close-run states, while Nader was assured of votes in states where the outcome was a foregone conclusion.

Kleinfeld saw it as an end-run around the Constitutional election provisions for electoral voting among the states.

Although no money changed hands, the scheme included an exchange of something of value ­ a promise, in exchange for a vote. That, Kleinfeld said, is a classic consideration in a contract.