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No En Banc Rehearing as to First Amendment Right To Create Vote Swap Site:

The Ninth Circuit has refused to rehear en banc its earlier decision upholding a First Amendment right to create a vote swap site.

For more on why I think vote-swapping can't be easily equated with criminalizable vote-buying (an argument made by the dissent from denial of en banc), see here and here. A short excerpt:

A legislator promising to vote a particular way if another legislator votes a particular way: ordinary log-rolling. [Trading votes for votes in the legislature is thus seen as vastly different from trading votes for money.]

A legislator promising to vote a particular way if voters elect him: ordinary and constitutionally protected (Brown v. Hartlage) campaign promises.

Voters promising to vote for a legislator if the legislator promises to vote a particular way: the example [given here], which I think is quite proper.

Voters promising to vote a particular way if other voters promise to vote a particular way: that's voteswap.com, and it seems to me hard to see why it should be a crime when the others are permissible and even constitutionally protected. If legislator-legislator, legislator-voter, and voter-legislator deals are permitted, why not voter-voter deals?

Kent Scheidegger (mail) (www):
"If legislator-legislator, legislator-voter, and voter-legislator deals are permitted, why not voter-voter deals?"

But the question is not whether they should be permitted. The question is whether the State of California is forbidden by the Constitution of the United States from deciding not to permit them. That is an entirely different question, and least for those of us who still believe in the "dead Constitution."
3.13.2008 5:47pm
BruceM (mail) (www):
I don't see the evil in selling votes since a particular vote can never actually be verified. If Bill Gates wants to pay me $10 to vote for X candidate, why can't I take his money? It's not like he could ever prove that I voted for Y.

Kent: If it's protected by the First Amendment, then the State of California cannot decide to ban it. Whether it should or should not be permitted is a matter of policy, not constitutional law.
3.13.2008 5:53pm
Kent Scheidegger (mail) (www):
Bruce, the portion of your comment nominally addressed to me does not contradict anything I said or say anything that is not obvious. Your point is .... ?

The question before the Ninth Circuit is strictly the constitutional question, not the policy question. Was that not clear enough from the context?
3.13.2008 6:03pm
Eugene Volokh (www):
Kent: The site is a means for the operators to speak, and for voters to speak on it. The question is whether the speech, "I will vote for X if you vote for Y," is constitutionally unprotected speech. Some argue that it is, because it's tantamount to vote-buying; my examples above argue the contrary.

One could, of course, argue that even if the speech is not tantamount to vote-buying, it's still constitutionally unprotected. But why would this exchange of political promises, through speech, not be constitutionally protected speech?

Brown v. Hartlage tells us that legislators' promises to vote for X if voters elect them are constitutionally protected. I would think that legislators' promises to each other (if you vote for my bill, I'll vote for yours) would likewise be constitutionally protected -- or are you saying that the government could criminalize them? If so, how would you distinguish such legislator-legislator from the promises held protected by Brown?

And if I'm right that legislator-to-legislator and voter-to-legislator political promises are as protected as legislator-to-voter promises (which are protected, see Brown), then how would voter-to-voter promises be distinguishable?
3.13.2008 7:16pm
Kent Scheidegger (mail) (www):
"I would think that legislators' promises to each other (if you vote for my bill, I'll vote for yours) would likewise be constitutionally protected -- or are you saying that the government could criminalize them?"

I think that is distinguishable from Brown, and I'm not sure whether it's protected or not. There might be less pork if we could ban it, but I'm sure this hypo will remain hypothetical.
3.13.2008 7:49pm
Robb Shecter (denk) (mail) (www):
BruceM wrote:


I don't see the evil in selling votes since a particular vote can never actually be verified. If Bill Gates wants to pay me $10 to vote for X candidate, why can't I take his money? It's not like he could ever prove that I voted for Y.


Yes, and this distinguishes voter votes vs. legislator votes (where, most of the time, their votes become public record).

Based on this: I can imagine a good argument that, on its face, these facts fail to state a claim for vote-buying.
3.13.2008 8:11pm
John (mail):
Lots of activities are constitutionally protected, like voting, but subject to regulation by the states.

You have the right to have sex in your house. But in most places you cannot contract for it. You have the right to vote. But can the state bar you from entering into a contract for it? I would think so, but who knows?
3.13.2008 8:53pm
John Thacker (mail):
John,

I myself was thinking that the topic of the legality of vote-bartering, but not vote-selling, made for a very interesting comparison with prostitution, recently a subject of discussion. Politicking and prostitution would seem to be similar.
3.13.2008 8:58pm
Eugene Volokh (www):
John: On the contrary, your right to have sex in your house generally involves a "contract" in the sense of a mutual agreement. As to whether you can enter into agreements that go beyond "let's agree to have sex with each other" and instead are "you can have sex with my girlfriend [who is willing to have sex with you] if I can have sex with your girlfriend [who is willing to have sex with you]," it's hard to tell -- for obvious reasons, no laws clearly prohibit it, and there are no test cases for laws that might be ambiguous on the subject (e.g., laws that ban exchanging sex for "things of value").

Kent: Why do you think that the legislator logrolling is distinguishable for constitutional purposes from Brown v. Hartlage? Why is a legislator-to-legislator promise constitutionally unprotected when a legislator-to-voter promise is protected?
3.13.2008 9:02pm
Kent Scheidegger (mail) (www):
The Brown opinion itself emphasizes that the speech in question was made in the course of an election campaign, where First Amendment interests are at their peak. The opinion also disclaims any implication that it is setting a standard applicable to other contexts.


We hesitate before attempting to formulate some test of constitutional legitimacy: the precise nature of the promise, the conditions upon which it is given, the circumstances under which it is made, the size of the audience, the nature and size of the group to be benefited, all might, in some instance and to varying extents, bear upon the constitutional assessment. But acknowledging the difficulty of rendering a concise formulation, or recognizing the possibility of borderline cases, does not disable us from identifying cases far from any troublesome border.


Note that I did not say that I believe the logrolling promise is necessarily not constitutionally protected, only that I think it is distinguishable from Brown and a closer question.
3.13.2008 9:27pm
Eugene Volokh (www):
Huh -- the speech here was also made in the course of an election campaign, where First Amendment interests are at their peak. But in any case, I'm not sure I quite grasp your distinction of Brown, other than that you think that Brown should be read as narrowly as possible.
3.13.2008 10:45pm
theobromophile (www):
You have the right to vote. But can the state bar you from entering into a contract for it? I would think so, but who knows?

When I was in college, my parents would ask me to come home on various Tuesdays to vote in our local elections. They would email me with the names of the candidates who had promised to keep funding the local school systems; I would go to my hometown, vote, and head over for dinner. Was food in exchange for votes something that the state can ban? Should ban? Consider my friend's parents: "You can vote any way you want, but if you want your college tuition, you're going to vote Republican."

While I know almost nothing about vote-buying, I imagine that the criminal penalties attach mostly to the enforcement part - where someone demands either their money or proof of the vote. Vote-swapping seems uniquely impervious to any sort of enforcement of either side of the contract.

Is it not a part of our fundamental freedom of speech for my parents to email me that information? I find it very, very tough to believe that political speech, which is that the core of our First Amendment free speech right, can be so easily circumscribed. Generally, people have the right to do a lot of very stupid things with their Constitutional rights: there is no requirement that one act in a wise manner, or in accordance with good public policy. (If such were the case, the Constitution would be useless, as the current view of "good public policy" would be the only protection given to citizens.)
3.14.2008 1:08pm
Kent Scheidegger (mail) (www):
"Huh -- the speech here was also made in the course of an election campaign, where First Amendment interests are at their peak."

You asked me why I thought Brown was distinguishable from your logrolling example, not from Porter. Your logrolling example does not involves speech in the course of an election.

I think the Brown decision does not establish a sweeping rule but is instead a decision on the facts of the case because the passage I quoted expressly says so. That doesn't seem hard to me.

As for distinguishing Porter from Brown, although Porter does involve speech relevant to an election, it does not seem to me that it presents the evil of censorship that the First Amendment is directed toward or the underlying reasons why First Amendment interests are at their peak in election campaigns.

The core purpose of the First Amendment is to insure that ideas can be aired and compete freely in the marketplace of ideas, rather than having a government-approved belief being given preference over government-disapproved beliefs.

Speech which merely proposes a transaction does not express an idea in this sense, and such speech is often regulated or prohibited. "You can have Kristen for $5500 an hour" is speech, but it is a crime. "I will sell you this hot stock for 10 cents a share" may also be a crime, if the extensive regulations on securities transactions have not been complied with.

"I will vote for X if you will vote for Y" does not express any ideas or facts regarding who is the better candidate or who has the better position on issues, but it simply proposes a transaction. Although the question is close, it seems to me to be closer to "I will give you a cigar if you vote for X" than it does to the speech at issue in Brown.
3.14.2008 3:17pm
Dilan Esper (mail) (www):
Kent:

True enough (although you are analogizing to a commercial speech standard-- speech that does no more than propose a commercial transaction-- that doesn't really apply to political speech), but how about "I will vote for Nader in California if you will vote for Gore in California because we both should want to get the Green Party 5 percent representation and matching funds without compromising Gore's chances to win the election"? Can you really say that THAT speech does no more than propose a transaction? And isn't THAT speech what the vote trading websites are all about?
3.14.2008 9:24pm