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Questionable politicking is usually limited to smoky back rooms. But the Internet brought the practice of vote trading out in the open, and Thursday the 9th U.S. Circuit Court of Appeals told a lower court to decide whether the practice is constitutional. The unanimous three-judge panel told a lower court that the constitutional issues were too pressing to wait for a state court to interpret the law, giving a jump-start to Web site operators who want to offer vote-trading for the 2004 presidential elections. “There is a risk in First Amendment cases that the delay that results from abstention will itself chill the exercise of the rights that the plaintiffs seek to protect by suit,” Judge Richard Paez wrote. He was joined by Senior Judge William Canby Jr. and 8th Circuit Senior Judge Donald Lay, sitting by designation. Lost in the post-election fiasco following the November 2000 presidential race was a smaller controversy — residents of different states agreeing to swap votes to build up Green Party candidate Ralph Nader’s vote total without jeopardizing Democrat Al Gore’s chances of winning. In closely contested states, Nader supporters would swap out their votes and throw their weight behind Gore. “It’s a way for supporters to express their enthusiasm for third parties without their vote throwing the election to their last-choice candidate,” said Lisa Danetz, a staff attorney with the National Voting Rights Institute, which is litigating the case alongside the American Civil Liberties Union. “It’s a way to engage in concerted political action.” Then-Secretary of State Bill Jones, a Republican, put the kibosh on the practice. A week before the election, Jones sent a letter to voteswap2000.com threatening them with prosecution for violating state election laws. Other sites, such as votexchange2000.com, shut down over fears that they too would be targeted. Jones did not send a letter to still more sites, such as NaderTrader.com, because he determined that they were not in violation of state law. Several operators decided to fight back, claiming their rights to free speech and assembly were being violated. U.S. District Judge Robert Kelleher denied their request for a temporary restraining order and the election proceeded with the Web sites effectively shut down. Whether some people did indeed swap votes is likely, though speculative. Kelleher later granted the state’s request that he abstain from deciding the suit. Under the Pullman doctrine, judges may avoid deciding constitutional issues if a state law question is at the center of the case. But a Pullman abstention is rare, and Paez said it’s almost never appropriate in a First Amendment case. Although the court did not reach the merits in Porter v. Jones, 03 C.D.O.S. 1154, Danetz said the decision was significant because it sends a signal that the issue is important enough to decide without further delay. William Wood, chief counsel for Secretary of State Kevin Shelley, said the new administration hasn’t changed positions — bartering votes is against the law. “You can’t do anything but vote with your own conscience,” Wood said. The idea behind the vote swapping was to give Nader enough votes to become eligible for federal campaign funds without tipping the balance toward Bush in close states. However, Nader received just 2.7 percent of the popular vote, failing to qualify the Green Party for federal funding.

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