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A judicial blessing for vote-swapping sites

Internet attorney Eric J. Sinrod explains why a court victory could turn Web sites into a deciding factor in close presidential elections.

    Just as the 2008 presidential race is kicking into high gear, a federal appellate court has ruled that California's former secretary of state improperly threatened criminal prosecution against two vote-swapping sites pertaining to the Bush-Gore 2000 presidential election.

    Specifically, the court held that because the secretary's actions were not sufficiently tailored to advance legitimate interests of the state of California, he could not violate First Amendment rights in seeking to shut down the sites voteswap2000.com and voteexchange2000.com. This ruling very well could be important if vote-swapping sites emerge during the upcoming 2008 presidential election.

    As we recall, the hotly contested 2000 presidential election was very close. George W. Bush and Albert Gore Jr. were in a statistical dead heat, according to polls leading up to Election Day. The election also included various third-party candidates, including Ralph Nader for the Green Party and Pat Buchanan for the Reform Party. Even though Nader and Buchanan at the end of the day only accounted for 3.1 percent of the national popular vote, their votes were important due to the closeness of the election between Bush and Gore.

    With the election approaching, Bush and Gore supporters expressed concerns that swing states might get pushed one way or the other based on votes for Nader or Buchanan.

    Due to the way the electoral system works, there also was worry that small numbers of third-party votes actually could be decisive in close states because of winner-take-all rules for the allocation of presidential electors. A candidate actually could wind up winning the presidency while losing the national popular vote. (Flashback: Bush ultimately did win the presidency, based on court rulings up to and including the United States Supreme Court, despite losing the national popular vote). Winner-take-all rules, which were present in all states but Maine and Nebraska, allocate all of a state's electoral votes to the candidate who obtains the most popular votes in that state--even if his share is less than an outright majority.

    If another statistical dead heat looms and third-party candidates can muster support, then the import of the Porter v. Bowen decision on vote-swapping sites will become quite evident.

    In this intense environment, two sites were created, voteswap2000.com and votexchange2000.com, which urged people to swap their votes and provided e-mail means for accomplishing this objective. By e-mail, third-party supporters in swing states (where the projected result was up for grabs), such as Florida or Ohio, could agree to be paired with major-party supporters in safe states (where the projected result was fairly clear), like Massachusetts or Texas, such that the swing state users would promise to vote for a particular major party candidate while the safe state users would promise to vote for a specific third-party candidate.

    The true point of the swaps, when agreed to by Gore and Nader supporters, was to improve Gore's chances of winning the Democratic-pledged electors in the swing states without diminishing Nader's percent of the national popular vote (which had to exceed 5 percent to qualify Nader's party for federal funding in future elections).

    Just four days after the vote-swapping sites were launched, the then California secretary of state threatened criminal prosecution, alleging a variety of state election and penal code violations. Immediately thereafter, the sites were disabled. The people behind the sites filed a federal lawsuit, asserting, in addition to other arguments, that the threatened criminal prosecution violated the First Amendment of the Constitution.

    Not a testament to the speed of the legal system, it took until August of this year--2007, many years after 2000--for the case to progress to the point of the decision by the federal appellate court. But at least for the vote-swapping advocates, the result was worth the wait.

    The U.S. Court of Appeals for the 9th Circuit, in the case titled Porter v. Bowen, ruled on August 6, 2007, that the vote-swapping mechanisms of the sites, in addition to the communications and vote swaps they enabled, were constitutionally protected speech under the First Amendment. And even though the court recognized that California has valid interests in preventing election fraud and corruption, and perhaps in safeguarding the subversion of the Electoral College, those interests did not justify the complete disabling of the vote-swapping sites and mechanisms.

    As such, the California secretary of state's actions were not sufficiently tailored to advance the legitimate interests of the state of California, and thus could not overcome the First Amendment rights surrounding the vote-swapping sites.

    Very, very interesting--especially as we approach the 2008 presidential election. It's still possible that the polls will project a clear winner, meaning that vote-swapping sites may not even pop up. Even if the election appears to be close, such sites will not emerge unless there are third-party candidates. But if another statistical dead heat looms and third-party candidates can muster support, then the import of the Porter v. Bowen decision on vote-swapping sites will become quite evident.