Vote-swapping over the Internet is legal, court finds

A federal appeals court in California has ruled that vote-swapping Web sites are legal and are protected by the First Amendment to the U.S. Constitution.

The decision, released Monday by the U.S. Court of Appeals for the Ninth Circuit, stemmed from the contentious presidential election of 2000 between Vice President Al Gore and George W. Bush. At the time, two Web sites -- and -- were created to encourage voters to swap their votes. Alan Porter, owner of and William Cody, owner of provided voters with a way to trade their votes via e-mail.

"The vote-swap mechanisms enabled third-party supporters in a swing state such as Florida or Ohio to agree to be paired with major-party supporters in a 'safe state' such as Massachusetts or Texas, whereby the swing-state users would promise to vote for the major-party candidate and, in exchange, the safe-state users would promise to vote for the third-party candidate," according to the decision.

The court said the purpose of the swaps was to improve Gore's odds of winning the votes of Democratic members of the Electoral College in the swing states without reducing Green Party candidate Ralph Nader's share of the national popular vote.

However, four days after the Web sites were launched, then-California Secretary of State Bill Jones threatened to criminally prosecute Porter for allegedly violating various provisions of the California election and penal codes, which included selling votes for money.

In the face of such action, both Porter and Cody disabled their Web sites and filed a lawsuit in federal court alleging that Jones' threatened prosecution violated the First Amendment and exceeded his authority under California's election code.

The American Civil Liberties Union of Southern California and the National Voting Rights Institute, which is now affiliated with Demos, a national, nonpartisan public policy, research and advocacy center, represented Porter and Cody as well as two individual voters, Patrick Kerr and Steven Lewis.

According to the circuit court's decision, the district court found the case to be moot on two occasions, most recently because of an informal letter former California Secretary of State Kevin Shelley wrote to the state Legislature asking for clarification of state election code provisions.

"Because the letter does not assure that California will not threaten to prosecute vote-swapping Web sites in the future, we conclude that this appeal is not moot," the circuit court said. "On the merits, we hold that Jones violated appellants' First Amendment rights. The Web sites vote-swapping mechanisms, as well as the communication and vote swaps they enabled, were constitutionally protected."

In addition, the circuit court said trading votes over the Internet is not the same as bribing people to vote a certain way.

"The Web sites did not encourage the trading of votes for money, or indeed for anything other than other votes," the circuit court said.

Debra Bowen, the current California secretary of state, could not be reached for comment.

"The Ninth Circuit's ruling now establishes that the activities that Secretary Jones attempted to squelch are at the heart of the liberty safeguarded by the First Amendment and cannot be prosecuted under vote-buying statutes," the ACLU said in a statement. "The decision will be an important precedent protecting the right of Web site operators and voters to maintain and use such sites in future presidential elections."

This story, "Vote-swapping over the Internet is legal, court finds" was originally published by Computerworld.

Copyright © 2007 IDG Communications, Inc.

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