Vote-swapping Web sites are legal, appeals court (finally) says

It took seven years, but a federal appeals court finally vindicates a vote-swapping Web site that let Al Gore and Ralph Nader supporters swap their votes in the 2000 presidential election.

It took seven years, but a federal appeals court has finally vindicated the creators of vote-swapping Web sites that let Al Gore and Ralph Nader fans support their chosen candidates in the 2000 presidential election.

The purpose of the sites, which included the now-defunct and, was to let a Nader supporter in a state where George Bush might win "swap" his vote with a Gore supporter in a state like Texas where Republican victory was practically assured.

There was no actual way to enforce the swap. But the killjoys who inhabit government bureaucracies were nevertheless unamused and came up with the bizarre claim that operating a vote-swap site was a criminal act. California Secretary of State Bill Jones even threatened to prosecute and (which immediately shut their virtual doors in response).

Fortunately, the site operators--Alan Porter, Patrick Kerr, Steven Lewis, and William Cody--had the means to force the issue and take the state of California to court. They met with little luck before a federal district judge.

But on Monday, the 9th U.S. Circuit Court of Appeals ruled (PDF) that "the websites' vote-swapping mechanisms as well as the communication and vote swaps they enabled were constitutionally protected" and California's spurious threats violated the First Amendment. The 9th Circuit also said did not decide whether the threats violated the U.S. Constitution's Commerce Clause.

Here's the key graf: "Both the websites' vote-swapping mechanisms and the communication and vote swaps that they enabled were...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."

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About the author

Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.


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