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First Amendment Right To Create Vote Swap Site:

My view: The Ninth Circuit's analysis generally seems quite right, and further reinforces the principle that even speech that creates or offers an agreement is sometimes (though not by any means always) constitutionally protected, and that it's a mistake to blithely conclude that agreements and offers are by their nature "situation-altering" and thus unprotected. See generally my Speech as Conduct article, PDF pages 64 and 58-59.

The facts (throughout all the quotes, some paragraph breaks may be added, and many citations omitted):

Appellants created two websites, voteswap2000.com and votexchange2000.com, that encouraged people to "swap" their votes and provided email-based mechanisms for doing so. The vote-swap mechanisms enabled third-party supporters in a swing state such as Florida or Ohio to agree to be paired with major-party supporters in a "safe state" such as Massachusetts or Texas, whereby the swing-state users would promise to vote for the major-party candidate and, in exchange, the safe-state users would promise to vote for the third-party candidate. The point of the swaps, at least when agreed to by Nader and Gore supporters, was to improve Gore's odds of winning the Democratic-pledged electors in the swing state without reducing Nader's share of the national popular vote (which needed to exceed five percent in order to qualify his party for federal funding in future elections).

The California Secretary of State demanded that the sites be taken down, reasoning:

Your website specifically offers to broker the exchange of votes throughout the United States of America. This activity is corruption of the voting process in violation of Elections Code sections 18521 and 18522 as well as Penal Code section 182, criminal conspiracy.... The right to free and fair elections is a cornerstone of American democracy. Any person or entity that tries to exchange votes or brokers the exchange of votes will be pursued with the utmost vigor .... As the Chief Elections Officer of the State of California, I demand that you end this activity immediately. If you continue, you and anyone knowingly working with you may be criminally prosecuted to the fullest extent of the law.

The site operators complied, but sued, claiming their operation of the site was protected by the First Amendment. The court held that "agreements to swap votes on election day" are "protected by the First Amendment." (It also pointed out that the pro-Nader and pro-Gore advocacy on the sites was protected, but that wasn't in doubt; the question was whether the agreement itself, and the sites' participation in bringing together people who would enter into the agreement, was constitutionally protected.)

The court concluded that the agreements were presumptively protected by the First Amendment:

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. 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....

[Footnote moved:] Though Brown, is not directly on point because it involved candidate-voter rather than voter-voter communication, it generally supports our conclusion.... While recognizing that "illegal exchange[s] for private profit ... may properly be prohibited," the [Brown] Court made clear that most communication and negotiation surrounding the exercise of the franchise cannot be banned. In the Court's words, "[t]he fact that some voters may find their self-interest reflected in a candidate's commitment does not place that commitment beyond the reach of the First Amendment." In one respect, moreover, this case is easier than Brown because it does not involve any financial self-interest whatsoever. The voters in Brown could have expected to receive some (small) pecuniary advantage from the promised salary-saving. Here, in contrast, people agreed to swap votes without any promise at all of financial benefit.

And the court found that the state's arguments for restricting the agreements didn't pass intermediate scrutiny.

Thanks to lawprof Rick Hasen (Election Law blog) for the pointer, and other comments on the decision.

UPDATE: If you think vote-swapping should be constitutionally unprotected because it's analogous to vote-buying, please read this follow-up post, in which I explain why I think such an analogy is flawed.

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Bribe or Permissible Political Deal?

A commenter on the vote-swap site thread writes:

I think the court has confused what is going on (vote buying) with the purpose of what is going on (doing interesting political stuff).

Plainly, something of value is being given in exchange for a vote. That's vote buying. Would it have mattered if the safe-state guy was given money to vote for Nader? How is that different? The court talks about an "illegal" exchange "for private profit," suggesting that motivation is the key, not the purchase of the vote itself. But I think the purchase is the evil, since motives are notoriously hard to show.

If you want Nader to get a lot of votes in "safe" states, you should urge people in those states to vote that way; you shouldn't pay them to do so, whether with money or your own vote somewhere else.

An interesting analysis, which sounds appealing — and yet this isn't the way we reason as to political decisions, is it? Senator Smith to Senator Jones: "I'll pay you $10,000 if you vote my way." Criminal bribe. Senator Smith to Senator Jones: "I'll vote your way on the bill you like if you vote my way on the bill I like." Legislative business as usual, sometimes slimy but sometimes necessary for politics to function; clearly not illegal, and perhaps constitutionally protected (not that anyone has tested this). Yet "something of value is being given in exchange for a vote," no? (In fact, if the Senators fear losing reelection if they don't make deals like this, then the something of value translates into something of financial value for them — their salaries.)

OK, you say, legislative deals are special. But why should the sovereign voters have fewer rights to make deals than their servants in Congress? And in any event, let's set aside the legislator-legislator deal. Millionaire Smith to Senator Jones: "I'll pay you $10,000 if you vote my way." Criminal bribe. Millionaire Newspaper Publisher Smith to Senator Jones — or for that matter Middle-Class Advocacy Group Director Smith to Senator Jones — "I'll endorse you for reelection if you vote my [or my organization's] way," or, if you prefer "if you vote the wrong way, we'll editorialize strongly against you." Political business as usual, I take it, legal, not even slimy if publicly disclosed, and likely constitutionally protected (though that again hasn't, to my knowledge, been tested).

Yet "something of value is being given in exchange for a vote," no? And of course an endorsement by a leading newspaper or advocacy group is worth much more than a single vote by a voter.

My colleague Dan Lowenstein has written in detail about how many unclear boundary cases there are in this area (see Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L.Rev. 784 (1985)), and how many cases there are — such as the ones I mention above — in which the clear bribe and the clear permissible deal are separated by only one factor that might at first not seem dispositive (here, whether the deal is vote-for-vote or endorsement-for-vote on one hand, or money-for-vote on the other). But in any case, I hope these examples illustrate that one can't simply equate trading votes for money with trading votes for other votes.

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One More Vote-Swapping Example:

Imagine someone puts together a site called gun-rights-vote-pledge.com. The site would urge voters to promise to vote for Gubernatorial Candidate X if this candidate publicly pledges to support gun rights (assume the term is suitably defined, for instance by focusing on one particular issue).

Voters who agree would record their promises, either on the site or in e-mail to the campaign. And the site would especially try to persuade voters who usually aren't single-issue voters, and who might have normally voted against candidate X because of his stands on other issues, but who are willing to pledge a single-issue vote just this once (perhaps to better demonstrate the power of pro-gun-rights voters).

I take it that this site would be quite proper, and perfectly constitutional, even though it solicits a deal: a pledge of citizen votes for a pledge of politician votes. Offering the candidate $10,000 (assume it's for his pocket, not even a campaign contribution) to vote for gun rights: a criminal bribe. Offering voters money to vote Candidate X: a criminal bribe. But offering the candidate valuable votes, and in exchange offering the voters valuable political victories: constitutionally protected.

This is further evidence, I think, that swapping political acts for political acts is often quite different from swapping political acts for money; the first should be legal and is like constitutionally protected, while the second is bribery. So the "vote swapping by voters is the same as vote buying" argument rests, it seems to me, on an unsound analogy.

Let's also look at it from another perspective. A legislator promising to vote a particular way if another legislator votes a particular way: ordinary log-rolling. 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 above, 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?

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Careful With Those Assumptions:

A commenter writes, apropos the Ninth Circuit vote-swap decision:

What bothers me most about this case is that it gives the impression of a case decided to give the political result the judges favored, not on the basis of the legal arguments Eugene uses. The most blatant example of this is the majority's argument that the vote swapping scheme would not alter the electoral college results. The example they give is of a state in which the electorate is divided 49 percent for Bush, 48 percent for Gore, and 3 percent for Nader. They argue that if all the Nader voters engaged in a vote-swap scheme, and Gore won, that would be the proper result. I can't imagine the judges taking such a benign view of a vote-swapping scheme if the names and parties were reversed, and if the scheme led to Bush's winning a state he would otherwise lose.

I'm not that persuaded by such arguments generally -- but especially not when (as another commenter wrote), two of the judges were Bush, Jr. appointees. I can't say how conservative they are, but it's hard for me to casually assume that they were Gore enthusiasts.

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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?

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