Vote-Swapping Protected Free Speech

Third-party candidates in the Western US just got a legal boost. Take note for the 2008 presidential election: The First Amendment protects vote-swapping arrangements, according to the 9th Circuit Court of Appeals. The bottom line according to the Court is that vote-swap websites allow expression of opinions and candidate preference and are thus protected core political speech.

By extension, local vote-swapping within states is permissible also, if supporters of candidates could ever agree en masse. Thus all the supporters of a particular Governor candidate could agree to vote for a certain Secretary of State candidate, and vice versa, for example. Same logic holds for primary contests. (The ruling is binding upon the states of HI, CA, OR, WA. MT and AZ)

In 2000 supporters of presidential candidates Al Gore and Ralph Nader attempted vote-swapping in “safe” states via websites. California election officials shut the sites down with threats to prosecute under statutes prohibiting “vote buying.”

Appeals take time. Back in December of 2007 a 3-judge panel ruled that California's action violated the free speech rights of people who wanted to swap votes. On March 14, the full Court refused to even reconsider that opinion, over the strong objections of 3 conservative judges.including J. Dairmond O’Scannlain from Portland.

Political junkies may recall that in 2000, the idea behind the 2000 voteswap.com Web site and others was that people exchanged promises. "If you promise to vote for my preferred candidate in your state, I promise to vote for your preferred candidate in my state." The swap, which of course, would be impossible to enforce, would have given Gore votes from Nader supporters in states where Gore was competitive with Bush, while Nader was assured increased popular votes in states where (at least back in 2000) the outcome was a foregone conclusion because Bush or Gore was so far ahead.