A mere seven years after the 2000 election, the 9th Circuit Court of Appeals has finally handed down Porter v. Bowen, ___ F.3d ___ (9th Cir. 2007).
I’ve been particularly interested in this topic since it was the subject of my Master’s Degree Thesis, which I was overjoyed to see cited in the decision — twice!
The court held, as I’ve argued for seven years that vote-pairing websites are constitutionally protected and that California Secretary of State Bill Jones violated the First Amendment when he threatened to prosecute the operators of vote pairing sites. See, e.g., The Constitutionality of Online Vote Swapping, 34 Loyola L.A. L. Rev. 1297 (2001); The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Washington University Law Quarterly 143, 240-241 (2004) (“The secretaries of states’ actions . . . implicate core First Amendment values to such an extent that strict scrutiny must apply.”).
[Vote Pairing websites] involved people’s opinions on ‘campaigns for political office,’ which are precisely where the First Amendment ‘has its fullest and most urgent application.’ Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). Agreements whereby a swing-state third-party supporter and safe-state major-party supporter pledged to trade votes also would have expressed those voters’ (1) support for a particular major-party candidate or (2) support for a particular third-party candidate, as well as (3) their concern that unless action was taken, the winner-take-all electoral system could result in the will of the swing state’s popular-vote majority being overridden.
The opinion is a piece of First Amendment beauty!
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. Id. at 58-59. 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. Id. at 55 (emphasis added); cf. Marc John Randazza, The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Wash. U. L.Q. 143, 221 (2004) (“There can be no…serious assertion, that anyone entered into a vote-swap arrangement for private profit or any other form of enrichment.”).
And exactly as I’ve said for seven years:
Both the websites’ vote-swapping mechanisms and the communication and vote swaps that they enabled were therefore 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.
Of course, California is not the only state where a partisan hack mis-used his or her authority to try and shut down First Amendment protected vote pairing activity.
Before Katharine Harris gained fame (or infamy) for her involvement in the 2000 vote recount debacle, she weighed in on the issue of online vote-pairing. On November 2, 2000, the author of this study called the then Secretary of State and questioned her as to her opinion on the issue. Harris stated that the practice was “absolutely illegal” under Florida law. When pressed as to what statutes the practice violated, Harris stated that the practice was certainly illegal because “a vote is to be voted, not traded or swapped.”
Representatives of the Florida Department of State, Division of Elections, seemed confused as to how to apply Florida election law to vote-pairing. When questioned, Sharon Larson, Assistant General Counsel to the Florida Department of State, Division of Elections stated her expert opinion that online vote pairing “could possibly” be a violation of the law.291 Regardless, Larson suggested that any such violations were beyond the concern of the Division of Elections. “The Department of State does not have
prosecutorial authority,” she said.
Searching for a more definite answer, I pressed the Secretary of State’s office for an answer more definite than “maybe.” The General Counsel’s office deferred the inquiry to the judgment of the secretary’s public relations professionals. Bill Spann, Communications Director for the Florida Department of State, finally issued this official statement:
[V]ote-swapping may, in fact, constitute voter fraud, and all Florida citizens should be aware of that. Specifically, the process of vote swapping may violate Florida Statute sections 104.045 and 104.061. The Florida Department of State considers any allegation of voter fraud to be a very serious matter and would immediately inform the proper investigative authority.
This case doesn’t bind the Florida authorities. Nevertheless, Spann could use a remedial course in Constitutional Law. For an explanation as to why he was dead wrong, see The Other Election Controversy of Y2K pages 184-189.
On November 1, 2000, Minnesota Secretary of State Mary Kiffmeyer issued what could have been the most melodramatic statement of the 2000 election:
[Vote-pairing] seriously undermine[s] the integrity of the Minnesota electoral process and the high confidence that Minnesotans place on election results . . . . Minnesotans participate in political parties, nominate candidates, and work in campaigns with a high degree of expectation that their votes will have a significant and above-board impact on the election. . . . Vote-swapping is the ultimate in voter fraud. It proposes to change the outcome of the election through an underhanded scheme. . . . Fair and honest elections are the core foundation of our democracy. Vote-swapping undercuts the fundamental tenets that hold our country together. Vote-swapping cannot be permitted and will not be allowed in the State of Minnesota.
Minnesota too is outside the 9th Circuit’s reach. Nevertheless, for an explanation as to why Mary Kiffmeyer truly needs a remedial course in Constitutional Law, see The Other Election Controversy of Y2K pages 190-194.
The Arizona State Election Director, Jessica Funkhouse (R), told the press that Arizona law prohibited the practice of online vote-pairing. Funkhouse said, “It’s illegal in Arizona to give anything of value to vote in a certain way. According to Funkhouse, “anything of value” includes another person’s vote.
Funkhouse was a little less off-base, given Arizona’s broad election laws. Nevertheless, constitutionally she was wrong, and the 9th Circuit decision does cover Funkouse’s jurisdiction.
It really is nice to see that when core political speech is threatened, the courts still care. Bravo to the 9th Circuit for a wise decision.
For my full analysis of the issue See The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Washington University Law Quarterly 143 (2004).
Here’s my first Fox appearance when they had me debate the issue. Gawd, I used to be so stiff in front of the camera.