Federal Judiciary

En Banc Ninth Refuses to Reconsider Vote Swapping Case

By Robert Loblaw

Porter v. Bowen, 06-55517 (9^th Cir., March 13, 2008)

In a fascinating decision issued last August, a panel of the Ninth Circuit declared that voters have a First Amendment right to enter into vote-swapping agreements. From my earlier coverage:

The case arises from various vote swapping websites which sprang up during the 2000 election. The sites recognized the mental tug-of-war that bedeviled many left-wing voters in swing states: either vote for third party candidate Ralph Nader who reflected their values, and thereby ensure a Bush victory, or hold their nose and vote for Al Gore, thereby continuing the tyranny of a two-party system. Using the vote swapping sites, swing-state voters could agree to swap votes with would-be Gore voters in states like Massachusetts or Texas, where there was no doubt about which candidate would win the popular vote.

One of the leading vote swap websites, voteswap2000.com, paired up over 5,000 voters before being threatened with criminal prosecution from California?s Secretary of State. Following this threat, the website ceased its pairing activities and sent out an email telling already-paired members that vote swapping might be illegal. Shortly thereafter, several California voters filed suit, seeking a declaration that vote swapping is legal, injunctive relief to allow the sites to continue operating, and damages against the Secretary of State and others.

After more than six years of procedural wrangling, the Ninth finally addresses the merits of the plaintiffs? claims. After determining that the appeal is not moot, the Court concludes that vote swapping is protected by the First Amendment, and that California?s interest in preventing corruption, fraud, and subversion of the electoral college did not justify the Secretary?s actions to shut down the websites. However, because the First Amendment rights of vote swappers were not clearly established until today?s decision, the defendants are entitled to qualified immunity and will not be liable for damages.

Somewhat surprisingly, the Ninth has voted to deny en banc rehearing. Judge Kleinfeld writes a dissent, joined by Judges O’Scannlain and Bea, arguing that this case is not about protected speech but about unprotected conduct. He explains that voteswap2000 is no different from vote buying, which is not entitled to First Amendment protection. Judge Kleinfeld further argues that vote-swapping systems undermine the electoral college. Although it is constitutional to grumble and moan about the electoral college, that is the voting system prescribed by the Constitution, for better or worse. He concludes:

If people in one state want people in another state to vote a particular way, they can go there and ring doorbells, send them letters, buy advertisements on their media, publicize arguments on the internet, and otherwise explain to them why they ought to vote a particular way. But they do not have a constitutional right to buy their votes, with money or promises.

It?s a pretty persuasive dissent, and I expect the Surpremes will think long and hard about granting cert.

Full post as published by Decision of the Day on March 13, 2008 (boomark / email).