Vox says people in swing states should feel perfectly comfortable exchanging votes in people in safe states to help defeat Trump. They quote my friend (and congressional candidate) Jamie Raskin as saying that now that there’s one ninth circuit case saying that a particular Nader Trader website was protected by the First Amendment, it is all legal.
Actually, that’s a gross oversimplification:
What would be considered crossing the line, and what type of dynamic could we see this fall?
A. In this election, it would allow, for example, a Jill Stein supporter in a swing state like Ohio to vote for Hillary Clinton in exchange for a Clinton supporter in a safe state like California to agree to vote for Jill Stein. The supposed benefit of this trade is that the Ohio voter helps Clinton get elected in a place where a vote for a third-party candidate can act as a spoiler, but Stein’s overall popular vote totals would be the same, potentially entitling Stein to some public financing for her campaign and showing the candidate’s popularity.
Some have claimed that vote swapping constitutes illegal vote buying under federal law or state statutes. The California Secretary of State went after a website that offered vote swapping in the 2000 election, claiming that it violated state anti-vote buying prohibitions. The case, Porter v. Bowen, went to the United States Court of Appeals for the Ninth Circuit, which held that the activity was protected by the First Amendment and did not raise the danger of an exchange of money for votes. The state tried to take it to the full Ninth Circuit, which refused to take the case. Three judges, however, issued a dissenting statement suggesting that vote swapping is illegal vote buying not protected by the First Amendment, and it is quite possible that another court would agree with the dissenters should the issue arise again.
[Update: A website has been created for such vote swapping, and there’s also a site aimed at Republicans.]\
Q. What’s your own view on the legality of vote swapping?
A. I am uncertain whether vote swapping would count as illegal vote buying. One key point is that these kinds of agreements are inherently unenforceable, given the secret ballot. You might tell me you are Stein supporter in Ohio who would vote for Clinton if I would vote for Stein, but you could be someone sitting in another country, or a Stein supporter in Ohio who still plans to vote for Stein.
But the larger point is that people are looking for ways around the fact that we have this odd system, where we make it really easy for third-party candidates to get on the ballot in most places, but almost impossible for them to win. A much more rational solution to this problem would be to adopt instant runoff voting [in which voters rank candidates in order of preference] so that a vote for Stein could go to Clinton (or for Gary Johnson could go to Trump) if that’s a voter’s second choice.