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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 March 13. It takes 14 votes to win reconsideration. The idea behind the 2000 voteswap.com website 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. He compared it to the pre-civil war tactics of a Missouri senator who led an invasion of Missourians into the Kansas territory in 1854 to swell the proslavery vote and defeat Kansas’s antislavery activists. “Fortunately, crossing state lines to flood another state’s election no longer involves an armed invasion, as when Missourians invaded the Kansas Territory,” he said. Now the vote swapping enables the large states to flood smaller ones with votes made on private promises, wrapped in the First Amendment blessing of the majority, he said. As for any appeal to the Supreme Court, it is too early to say. “We just received the decision and we’re still reviewing it,” said Kate Folmar, spokeswoman for California Secretary of State Debra Bowen.

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