Breaking News: In Important Ruling, Ninth Circuit Decides California Vote Swapping Case from the 2000 Election

I have posted the decision in Porter v. Bowen here. The court agreed that the First Amendment barred the state of California from closing down the 2000 Nader-Gore vote trading websites. Though plaintiffs advanced a number of arguments, the court accepted the one I thought the strongest: that the exchange of political rather than personal benefits rendered the activity protected by the First Amendment, even if the vote exchanges were somehow enforceable. (Disclosure: I assisted the ACLU a bit on this case.)

Here is the relevant paragraph:

Whatever the wisdom of using vote-swapping agreements to communicate these positions, such agreements plainly differ from conventional (and illegal) vote buying, which conveys no message other than the parties' willingness to exchange votes for money (or some other form of private profit). The Supreme Court held in Brown v. Hartlage, 456 U.S. 45, 55 (1982), that vote buying may be banned "without trenching on any right of association protected by the First Amendment." Vote swapping, however, is more akin to the candidate's pledge in Brown to take a pay cut if elected, which the Court concluded was constitutionally protected, than to unprotected vote buying. Like the candidate's pledge, vote swapping involves a "promise to confer some ultimate benefit on the voter, qua...citizen[ ] or member of the general public"--i.e., another person's agreement to vote for a particular candidate. Id. at 58-59. And unlike vote buying, vote swapping is not an "illegal exchange for private profit" since the only benefit a vote swapper can receive is a marginally higher probability that his preferred electoral outcome will come to pass. Id. at 55 (emphasis added); cf. Marc Johnandazza, The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Wash. U. L.Q. 143, 221 (2004) ("There can be no...serious assertion, that anyone entered into a vote-swap arrangement for private profit or any other form of enrichment.").

Both the websites' vote-swapping mechanisms and the communication and vote swaps that they enabled were therefore constitutionally protected. At their core, they amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of voters in closely contested states. Whether or not one agrees with these voters' tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.

Here's what I wrote about the case at the time of oral argument:

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 prohibited 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.)

Expect to see more such websites in 2008 if this ruling stands, especially if Bloomberg, Hagel, or someone else runs as a viable "Unity '08" candidate.

Posted by Rick Hasen at August 6, 2007 11:52 AM