Monday, August 13, 2007

"Vote swapping is a constitutionally protected activity"

The First Amendment protects our rights to facilitate and engage in vote swapping for presidential elections. The Ninth Circuit Court of Appeals made this ruling clear in Porter v. Jones on August 6, 2007. Porter arose from the efforts of American citizens who used the internet in the 2000 presidential election to help would-be Gore voters in "safe states" connect with would-be Nader voters in swing states.

The purpose of this connection was to trade votes so that Nader could win 5% of the national popular vote, while doing as little harm as possible to Gore's chances for victory. If Nader received 5% of the national popular vote, then the Green Party would receive federal funding in future presidential elections. By trading votes with would-be Gore voters in "safe states," the vote swap was designed to avoid costing Gore the election. Indeed,'s stated goal was to "maximize the percentage of the popular vote that Nader receives, yet allow Gore to win the national election."

Within four days of going live and only eight days before the election, then-California Attorney General Bill Jones sent the website owners a cease-and-desist letter alleging that vote swapping violated both the state election and penal codes. The specific claims were corruption, fraud, and criminal conspiracy. The basis of the criminal conspiracy allegation was "preventing the subversion of the Electoral College." The website owners complied and took down the website.

But, they filed a lawsuit along with users of the website to help resolve this issue for future elections. The Ninth Circuit rejected the California state government's arguments because they violated the constitutional First Amendment rights of American citizens.

First, the court considered if the facilitation of vote swapping constituted "pure speech" or "expressive conduct." This distinction matters in some cases because the level of scrutiny a court applies differs. Cases involving "pure speech" are subject to the strict scrutiny standard of constitutional review, which is a very high burden for the government to overcome. "Expressive conduct" cases are subject to a lower level constitutional review, intermediate scrutiny. This is still a relatively high burden for the government. In either case, if the government cannot meet its burden of proof, then the law it is seeking to enforce violates the First Amendment and cannot stand.

Without deciding if the facilitation of vote swapping is expressive conduct or pure speech, the court simply applied the lower standard of intermediate scrutiny because it the law does not satisfy this burden of proof, it does not meet the higher, strict scrutiny standard. There are four elements that the government must prove to satisfy the intermediate scrutiny standard. The court found that the allegations in the cease-and-desist letter violated the last and "most important" element: incidental restrictions on First Amendment freedoms must be no greater than is necessary to further the purposes of the law at issue.

Although the court recognized the legitimate interest of the state in preventing corruption of the political process, it found that this interest did not apply to the facts. Specifically, the court found that the corruption interest only applies to prevent "illicit financial transactions such as the buying of votes or the contribution of large sums of money to legislators in exchange for political support." Because the vote swapping involved in monetary exchange or other exchanges like property, this interest did not apply. Exchanging money or property for votes is illegal.

The website merely connected would-be Gore voters in "safe states" with would-be Nader voters in swing states. After that, the individuals corresponded and simply acted in good faith that the other person was being sincere. Of course, there was the potential that someone would not live up to their word or the right for someone to choose not swap if they felt uncomfortable with connection. But, the website made clear that people had the right to not swap votes, that this process was merely a gentleman's agreement, and that users should "take some reasonable measures to ensure that you could trust the other person."

Regardless, the government argued that the potential for fraud justified the incidental restrictions on individuals' First Amendment rights. The court rejected this argument for several reasons. One reason being, the government failed to show that less restrictive means could not accomplish the goals of avoiding fraud. For example, the government could have imposed certain requirements on users who agreed to participate to ensure the legitimacy of their state of residency, such as providing a driver's license number.

Finally, without deciding if California's interest in "preventing the subversion of the Electoral College" is even a legitimate interest, the court assumed it was and found that the website owners and users did violate this interest. People have the right to vote for whom they choose. In winner-take-all states, Bush could receive less than 50% of the vote and win all their Electoral College votes, even though the majority would prefer another candidate (e.g. Bush 49%, Gore 48%, Nader 3%).

Thus, if would-be Nader voters wanted to help ensure that their second choice would win (i.e Gore) and would-be Gore voters wanted to help support the ability of a third-party to receive federal funding in future presidential elections, this outcome may be disappointing to the party who is not the second choice to the prom, but it does not make it a "subversion of the Electoral College." Rather, the vote swap is democracy and free will in action.

Porter is an important decision as we approach the 2008 presidential election because it inspires confidence in those who seek to break the stranglehold that the two-party system has on our nation by developing websites like

Perhaps Unity08
takes us even a step further in the effort to force the major parties to offer their loyalty to the interests of the American population at large, instead of bowing to the demands of a party or serving up the legislation written by the very lobbyists and industry that the government is supposed to regulate.

In short, Porter is a wake-up call that our current political system seeks to diminish third-party or independent candidates from being heard or having a significant effect in our democracy. Make no mistake, this decision is a beacon of light during a time when our current Supreme Court gives free speech advocates a cause for concern. (more on the Supreme Court next).

Porter upholds long-standing First Amendment principles and allows them to flourish through technology that provides the ability for everyone to connect and participate in our democratic society like never before. We should take time to reflect on the importance of this decision, as well how we can collectively work together to improve our political process and ensure more competent, responsible, and effective leaders become our elected officials. Be creative. Be active. Be here now.

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of American government."
- Whitney v. California,
247, 357, 375 (Justice Brandies in concurrence).