Vote-Swapping is Back -- but not Without Controversy

WASHINGTON — As a longtime environmentalist, Jim Dougherty was thrilled to vote for Ralph Nader and the Green Party ticket in the 2000 presidential race. But like a lot of Millennium Naderites, Dougherty experienced a severe case of voter’s remorse soon after the election, especially when he saw the environmental record compiled by the Bush administration. “I ended up thinking I had done a disservice to the country,” says Dougherty, a D.C. solo practioner and Georgetown Law graduate. This election season Nader’s off the Green Party ticket, and Dougherty was off Nader — or so he thought until he had a talk with his friends Nadia Steinzor and Steve Yoder. In 2000 the two had helped pioneer the novel idea of “vote-pairing” — that is, using the Internet to match Nader supporters with Democrats in other parts of the country to facilitate a vote swap. The couple is back at it in 2004 with a snazzy new Web site, VotePair.org. The idea is simple. Since Kerry and Nader supporters mostly share an “anybody but Bush” sensibility, they should vote cooperatively, with Kerry supporters voting for Nader in states where Kerry is sure to win (or lose), and Nader supporters voting for Kerry in toss-up states where a few hundred more votes might tip the state to the Democrat. To facilitate the swaps, voters can register at VotePair.org and be paired off by administrators. Dougherty was sold. Though angered by Nader’s decision to campaign in key battleground states this election, he agreed to register and vote for Nader in D.C. Nov. 2, if a suitable pairing for him can be found. “If it means I can get a meaningful Kerry vote [in a toss-up state], I’m willing to swallow my principles,” Dougherty says. He’s not alone. Since VotePair.org went active in late September, more than 11,000 voters have signed up to swap votes, and site administrators expected much heavier traffic this week as ballots become finalized and voters begin to focus on Election Day. With Kerry and Bush running step-for-step in several battleground states, the potential for paired voters to impact the race has not gone unnoticed by conservative watchdogs. “Brokering exchanges of votes runs contrary to the spirit of free elections,” says Christine Iverson, a spokeswoman for the Republican National Committee. “The Democrats seem unable to defend their candidate, so instead they place their faith and votes in this online Ponzi scheme,” she adds. For their part, Democrats don’t seem much more enthusiastic about the site. “If two people are considering VotePair, our option would be how about both of you going ahead and supporting John Kerry,” says Tony Welch, press secretary for the Democratic National Committee. “If there is a vote to be cast, we want it to be cast for John Kerry.” The disdain of the two major parties suits the folks at VotePair.org just fine. When the 20 or so organizers of the site got together this summer, one of their main goals was to begin to break the hammerlock the major parties have on the electoral system by facilitating what they term “strategic voting.” In a nutshell, they believe if they can create technology that allows people to vote for third-party candidates without hurting their second-choice candidate, then the seeds for a viable third-party movement will be sown. An important objective is get a third party 5 percent of the vote nationally, qualifying it for federal matching funds, though that appears unlikely to happen this year. As recognized by many legal commentators (most notably 20th century French jurist Maurice Duverger), the simple-majority, single-ballot voting system used in the United States heavily favors a strict two-party political system. Duverger theorized that under this system a voter who actually prefers a third candidate will instead vote for the lesser evil among the two front-runners to keep his least-preferred candidate from winning. The so-called Duvergerian equilibrium helps ensure only the two parties prosper. But vote trading via the Internet is potentially deeply destabilizing to the Duverger equilibrium and to the Electoral College. “It has exposed a flaw in the college, but that flaw exists mainly because Democrats and Republicans have gamed the college in their own way,” says Marc Randazza, a Florida attorney who advises VotePair, and who has written extensively on strategic voting. Randazza notes that the current system allows the election of a president who hasn’t earned the votes of a majority of Americans. “If you had instant run-off voting of some kind, VotePair wouldn’t have to exist. . . . That’s what we set up for the people of Afghanistan — why can’t we have it?” Be that as it may, when vote pairing came on the scene in the weeks before the 2000 election, with sites like Voteexchange.org and VoteSwap2000.com, many state election officials viewed the practice as illegal, and a few even attempted to shut sites down. Notable among them was then-California Secretary of State Bill Jones, who threatened to prosecute vote-swapping site administrators for violating California election laws. The American Civil Liberties Union and the National Voting Rights Institute sued Jones, a Republican, to block his action. Four years later, the case is still languishing in the federal courts. Though California has declined to take action against VotePair, it hasn’t abandoned its position that vote swapping on the Internet is illegal. The crux of the case is that California, and every other state, forbids trading votes for anything of value. In its briefs, California argues that this prohibition is not limited to situations where a party receives cash payments or some other form of direct financial benefit. Rather, the state argues, “the exchange of a vote for a vote constitutes an exchange of something of value to the participants,” as barred by the state’s elections code. The state also contends that groups like VotePair are engaging in “vote brokering” to manipulate the Electoral College, and that the government has a compelling interest in protecting the voting system from being subverted. “While I understand the appeal that underlies [VotePair], I think ignoring the potential for fraud is naive and irresponsible,” says Kathryn Gimple, a California deputy attorney general who worked on the case. Jamin Raskin, a constitutional law professor at American University’s Washington College of Law, who is advising VotePair on legal issues, says California’s position is absurd. “The idea that vote pairing is the same as vote buying or selling is ridiculous,” says Raskin. “Nothing of value changes hands. You have the right to talk to people and form coalitions, that’s First Amendment activity.” John Fortier, a research fellow specializing in election law at the American Enterprise Institute, agrees with Raskin that vote pairing is more akin to persuasion than vote buying. “Strategic voting is done all the time,” says Fortier. “When it comes down to it, there is no way to enforce the promised trade, given the secret ballot.” But enforceable or not, aren’t the people who register with VotePair in fact exchanging promises to perform, traditionally defined as a thing of value for purposes of making a contract? “Look, even a pack of ramen noodles might be something of value here, but a promise of a vote is not,” says Randazza, the Florida attorney advising VotePair. “If a candidate induces a vote by saying ‘read my lips — no new taxes,’ you don’t have an enforceable contract in law,” he adds. Randazza argues that all voters who register with VotePair really do is contact each other and discuss how they are going to vote and why. “Do you really want the government in the middle of that?” Randazza asks. So far this year, the answer to that question seems to be no. Though election officials contacted in several toss-up states expressed suspicion about VotePair, none were ready to act against it, and the group is aware of no plans to interfere with its project. Kent Kaiser, a spokesperson for Minnesota’s Republican Secretary of State Mary Kiffmeyer, who spoke out against vote pairing in 2000, says she remains opposed to the practice and has asked Minnesota’s attorney general for an opinion on its legality. But, Kaiser adds, Kiffmeyer is not contemplating direct action at this time. “We’ll use the bully pulpit for now,” Kaiser says, “but it doesn’t pass the smell test for a clean and fair election.” In Ohio, James Lee, spokesman for Republican Secretary of State J. Kenneth Blackwell, is equally suspicious. “It is illegal in this state to offer to vote or not to vote in any particular way for anything of value,” Lee says. “The extent to which having someone else vote a certain way is something of value would be up to local prosecutors,” he adds. Lee says his office will refer the issue to the state attorney general to “see if there is anyone we need to chase out of the state.” Not every official thought VotePair sounded so bad. Douglas La Follette, Wisconsin’s Democratic secretary of state, says he isn’t going to interfere with the group in his state. “I believe in the right of people to express themselves,” La Follette says. “I’m not a lawyer, but I think you might have a First Amendment issue if you tried to stop them. It’s frustration with the Electoral College.” Election officials contacted in other swing states, such as Pennsylvania, Iowa and New Mexico, either weren’t aware of VotePair, or didn’t plan to take any action against it. While no official sanction may be forthcoming for VotePair, certain conservative Web sites, such as FreeRepublic.com, are rife with plotters scheming to derail the group’s effort, principally by posing as Nader or Kerry supporters and registering with the site. “We’re aware of it and have security in place,” says Carnet Williams, a founding member of VotePair. The larger question is, even if left alone, can VotePair affect the election’s outcome? Right now, the group admits that it’s heavy with Kerry voters in safe states and light on third-party voters in toss-up states. Unlike in 2000, there isn’t a large pool of Nader Green Party activists to tap into, and his support appears to be skewing more conservative, like Ross Perot’s in 1992. The group has tried to supplement the Nader pool by appealing to other third-party supporters but the potential there looks limited. George Getz, communications director for the Libertarian Party, says its candidate, Michael Badnarik, is opposed to Libertarians using the site (though, of course, the party isn’t telling them not to use it). “I guess people vote-pairing don’t want to make a difference,” Getz says. “The greatest way to make a difference is to vote and alter the outcome in swing states.” Kevin Zeese, a spokesman for Ralph Nader, says vote pairing is OK with his candidate: “We’re not behind it. It’s not our thing, but we don’t oppose it. We’re just trying to get all the votes we can get.” As of press time Friday, VotePair had arranged just over 1,200 pairings, including 273 in Florida, 170 in Ohio, and 121 in Pennsylvania. By contrast, in 2000 the various pairing sites claimed to have matched-up about 34,000 voters, though that number is impossible to confirm. AU’s Jamin Raskin notes that in the last election most of the action came in the final week, when up to 500 people a day were being paired off. “It doesn’t take many to be tactically effective,” Raskin says. “It was 537 in Florida last time. We can still make a critical difference in this election.” Douglas McCollam wrote this story for Legal Times, a Recorder affiliate based in Washington, D.C.