Vote-swapping Web Sites Ruled Legal

After seven years, a federal appeals court, siting the First Amendment, has finally made vote exchange websites legal.

Now-defunct sites votexchange2000.com and voteswap2000.com were set up to let a Nader supporter in a state where George W. Bush might win "swap" her vote with a Gore supporter in a state like Texas where Bush was practically guaranteed a win.

There is no real way to enforce the vote exchange. It is based on internet "good will."

The two websites shut down after legal action was threatened by California Secretary of State Bill Jones. The site operators then took the state to federal district court with little luck.

But on Monday, the 9th U.S. Circuit Court of Appeals said "the websites' vote-swapping mechanisms as well as the communication and vote swaps they enabled were constitutionally protected."

At least one blogger, T.S. from The Sophistry, does not believe this current ruling is a step in the right direction:

First, it’s one thing for the Ninth Circuit to say that communication was constitutionally protected, but it went on to hold specifically that the vote swaps the communications enabled were also protected.

Second, the Court applied the strict scrutiny standard, which courts generally do in Bill of Rights cases, but… I’m not sure that the Court had to apply that standard. The right to vote is not a First Amendment issue — as the existence of the Fifteenth, the Nineteenth, the Twenty-Fourth, and the Twenty-Sixth Amendments makes clear. If voting were a First Amendment issue, why would we have needed four separate Constitutional Amendments? Do those Amendments now just lose force because of this ruling? Of course not — that would be silliness on its face.

Either way, rather than recognizing that the act of voting, and the right to vote, is not “speech” as covered under the First Amendment, the Court actually held that in this case, the act itself was some sort of expressive conduct that communicated support for third party candidates.

And the Court distinguished this sort of “expressive” vote swapping with simply buying votes, which is no-goodniks under settled case law. So as long as no money changes hands, and there is no enrichment, vote swapping is constitutionally protected political speech.

Okay, fine.

So these websites, and the people doing vote-swapping, are presumably going to run afoul of McCain-Feingold, right? They are advocacy for a political candidate (or a set of them) and are political speech, according to the Ninth Circuit.

This is a sad day, when even our courts think the whole election system is just a game to be played, as opposed to an honest way to vote your conscience and let the outcome dictate the results.

-Dippold

Political Online Reputation