May 20, 2007

Ninth Circuit Hears Oral Argument in Nader Vote Trading Case

Who says the 2000 election is over? Last Friday the Ninth Circuit heard oral argument (audio) in Porter v. McPherson (formerly Porter v. Jones and likely to be retitled Porter v. Bowen). At issue was the decision of then-Callifornia Secretary of State Bill Jones to threaten litigation to shut down websites that allowed individuals in different states to agree to "trade" votes. These sites were set up by people who wanted to make sure votes for Nader did not lead to a Bush victory in 2000. An example of the kind of exchange that the site would facilitate would be a Gore voter voting for Nader in California in exchange for a Nader voter in Florida voting for Gore. This would help give Gore Florida's electoral votes and give Nader his 5% of the popular vote to be entitled to public funding in the next presidential election.

Plaintiffs argue that barring the facilitation of discussions between voters in different states that could lead to exchanges violates the plaintiffs' (and their users) First Amendment rights of free speech and association. (They also have an interesting statutory interpretation argument---that the exchange of political benefits is not "vaulable consideration" under the California statute---and a dormant Commerce Clause argument that I don't really understand.)

The Ninth Circuit heard this case first in 2003 (opinion), which decided the district court erred in abstaining in the case. My earlier coverage is here. The case is now back before a new panel on the merits (Fisher, Clifton and District Court judge Martinez, sitting by designation).

The issue is a fascinating one, about whether the unenforceable exchange of political benefits may be prohibted by the state in the name of preventing vote buying. I wrote about these issues more generally in Vote Buying 88 California Law Review 1323 (2000), and plaintiffs have relied upon my article to argue that this exchange of political benefits is not justified by the interests that justify preventing voter fraud. It also occurs to me that Dan Lowenstein's writing on why exchange of political benefits should not count as "corruption" under political bribery laws could be relevant to this question too.

I listened to the panel's oral argument and the panel was quite engaged. It will be interesting to see how this case comes out. It is possible the state law question could even be certified to the California Supreme Court. Maybe we'll have a decision by the 2012 election. (Disclosure: I've provided some informal advice to the ACLU, representing the plaintiffs in this suit.)

Posted by Rick Hasen at May 20, 2007 09:16 PM