Progressives determined to defeat Donald Trump but unsatisfied with Kamala Harris’s position on the war in Gaza were offered an 11th-hour voting option this year: In October, a group called Swap Your Vote began offering to match voters in politically “safe” states with those in swing states.
The idea was that a prospective Democratic voter in a reliably blue state could instead cast a protest vote for a third-party candidate on behalf of their match in the swing state. The swing-state voter would feel like, through the trade, they were voting their conscience without putting their broader election aims at risk.
Such vote swapping isn’t new. In 2000, multiple sites popped up on the relatively new World Wide Web, connecting prospective Al Gore voters in solid Republican states with voters in swing states who wanted to vote for Ralph Nader.
This year, as in 2000, vote swapping didn’t generate a large volume of protest votes, and the Trump opponents failed in their broader aim to deny him a victory in the swing states. But voters who participated in vote swaps said it provided them with a useful outlet to cast a meaningful vote while remaining true to their core beliefs….
In 2000, websites like vote-swap2000.com, votexchange2000.com, and NaderTrader.com launched in response to an article by constitutional law professor Jamie Raskin (now a U.S. congressman from Maryland), proposing vote swapping as a way to prevent protest votes from costing Gore the election.
The websites enabled third-party supporters in swing states such as Florida and Ohio to agree to be paired with major-party supporters in “safe states” such as Massachusetts or Texas.
Republican Bill Jones, who was California’s Secretary of State at the time, had threatened operators of the sites with criminal prosecution, claiming that what they were doing was similar to “vote buying” in violation of election laws. The creators of vote-swap2000.com and votexchange2000.com disabled their vote-swapping mechanisms but claimed in court that Jones’ threatened prosecution violated their First Amendment rights.
Almost seven years later, the judges of the 9th U.S. Circuit Court of Appeals ruled that vote swapping was not the same as “buying” votes because no money or thing of value changed hands. The court further held the practice to be protected by the First Amendment.
But the legality of vote-swapping initiatives could yet be challenged, says Michael Morley, an election law professor at Florida State University’s College of Law.
“The Supreme Court has never directly addressed the issue,” Morley says — and neither have most of their federal appeals courts. Given that, while this precedent might be persuasive to the Court, “they are also free to reject it.”
Morley says swapping votes could be interpreted as “paying someone for their vote, whether you’re paying them in cash, services or through someone else promising to vote a particular way.” Thus, Morley cautioned, a court could reach a different conclusion than the 9th Circuit did in 2007.
Richard Hasen, director of the Safeguarding Democracy Project at UCLA School of Law, agrees that legal uncertainty hangs over vote-swapping. There’s an argument that exchanging votes is an exchange of value and a form of illegal vote buying, he said. But there are strong arguments to the contrary, he noted.
“A legislator cannot exchange anything of value for her vote on a bill, for example,” he explained. “But what if there’s horse trading between legislators — ‘I vote for your bill if you vote for mine?’ Some have argued that pure political exchanges should not be covered by bribery laws. One could say the same about vote swapping.”
Hasen added: “There’s also an argument that these are not enforceable contracts, and so that makes them not an agreement to engage in vote buying.”
