The Volokh Conspiracy - First Amendment Right To Create Vote Swap Site:

My view: The Ninth Circuit's analysis generally seems quite right, and further reinforces the principle that even speech that creates or offers an agreement is sometimes (though not by any means always) constitutionally protected, and that it's a mistake to blithely conclude that agreements and offers are by their nature "situation-altering" and thus unprotected. See generally my Speech as Conduct article, PDF pages 64 and 58-59.

The facts (throughout all the quotes, some paragraph breaks may be added, and many citations omitted):

Appellants created two websites, voteswap2000.com and votexchange2000.com, that encouraged people to "swap" their votes and provided email-based mechanisms for doing so. 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. The point of the swaps, at least when agreed to by Nader and Gore supporters, was to improve Gore's odds of winning the Democratic-pledged electors in the swing state without reducing Nader's share of the national popular vote (which needed to exceed five percent in order to qualify his party for federal funding in future elections).

The California Secretary of State demanded that the sites be taken down, reasoning:

Your website specifically offers to broker the exchange of votes throughout the United States of America. This activity is corruption of the voting process in violation of Elections Code sections 18521 and 18522 as well as Penal Code section 182, criminal conspiracy.... The right to free and fair elections is a cornerstone of American democracy. Any person or entity that tries to exchange votes or brokers the exchange of votes will be pursued with the utmost vigor .... As the Chief Elections Officer of the State of California, I demand that you end this activity immediately. If you continue, you and anyone knowingly working with you may be criminally prosecuted to the fullest extent of the law.

The site operators complied, but sued, claiming their operation of the site was protected by the First Amendment. The court held that "agreements to swap votes on election day" are "protected by the First Amendment." (It also pointed out that the pro-Nader and pro-Gore advocacy on the sites was protected, but that wasn't in doubt; the question was whether the agreement itself, and the sites' participation in bringing together people who would enter into the agreement, was constitutionally protected.)

The court concluded that the agreements were presumptively protected by the First Amendment:

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. 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....

[Footnote moved:] Though Brown, is not directly on point because it involved candidate-voter rather than voter-voter communication, it generally supports our conclusion.... While recognizing that "illegal exchange[s] for private profit ... may properly be prohibited," the [Brown] Court made clear that most communication and negotiation surrounding the exercise of the franchise cannot be banned. In the Court's words, "[t]he fact that some voters may find their self-interest reflected in a candidate's commitment does not place that commitment beyond the reach of the First Amendment." In one respect, moreover, this case is easier than Brown because it does not involve any financial self-interest whatsoever. The voters in Brown could have expected to receive some (small) pecuniary advantage from the promised salary-saving. Here, in contrast, people agreed to swap votes without any promise at all of financial benefit.

And the court found that the state's arguments for restricting the agreements didn't pass intermediate scrutiny.

(For more on this, click here.)

(The court also reserved the possibility that strict scrutiny might be the proper standard, but concluded that even under the intermediate scrutiny standard, the speech should remain protected.)

The Secretary asserts three interests to justify any alleged burdening of Appellants' protected activity: preventing corruption, preventing fraud and preventing the subversion of the Electoral College. Because the concepts of corruption and fraud are related although distinct, we consider California's interest in preventing elections from being tainted by illicit financial transactions under the corruption rubric, and its interest in preventing deceptive campaign practices under the fraud rubric....

a. Corruption. Beginning with the State's anticorruption interest, we reiterate that we construe this interest to encompass only the prevention of illicit financial transactions such as the buying of votes or the contribution of large sums of money to legislators in exchange for political support. So defined, this interest was not advanced by the threatened prosecution of the owners of voteswap2000.com and votexchange2000.com. The websites did not encourage the trading of votes for money, or indeed for anything other than other votes. Votexchange2000.com actually included a notation that "It is illegal to pay someone to vote on your behalf, or even get paid to vote yourself. Stay away from the money. Just vote." And there is no evidence in the record, nor has the Secretary argued, that any website users ever misused the voteswapping mechanisms by offering or accepting money for their votes....

b. Fraud. The state's anti-fraud interest was furthered by Jones' threatened prosecution of the website owners. At least three kinds of fraud could have been perpetrated through those websites' vote-swapping mechanisms. People from other states (or even other countries) could have pretended to be third-party swing-state supporters or major-party safe-state supporters. Regardless of their location, people could have used the websites' vote-swapping mechanisms multiple times, thus trading their one vote (or zero votes) for several other votes. And even people who were truthful about their location and who only swapped votes once could have deliberately misrepresented their voting intentions. Threatening Appellants' websites with prosecution unless they disabled the vote-swapping mechanisms thus served the State's anti-fraud interest for the obvious reason that none of the above species of fraud could have been committed through mechanisms that were no longer in operation.

However, the Secretary has failed to demonstrate that the burden imposed on constitutionally protected activity by the disabling of the mechanisms was not "greater than [was] essential to the furtherance of [the State's anti-fraud] interest." First, the Secretary has not called our attention to, nor have we been able to locate, any evidence in the record that fraud actually took place during the brief period that the vote-swapping mechanisms were operational. No website users came forward with either admissions that they committed fraud or worries that their counterparts misrepresented their state of residency or voting intentions. The websites' owners also did not notice any suspicious online activity, such as the use of "obviously fake or multiple e-mail addresses," which voteswap2000.com stated it would try to eliminate if it occurred.

Second, as described above, both websites repeatedly warned users that fraud was possible and advised them to take steps to reassure themselves that they could trust their matched counterparts. Voteswap2000.com told users to "[u]se your own good judgement [sic] to determine if the person you are matched with is legitimate, and be aware that some people will try to abuse this system." Similarly, votexchange2000.com recommended that users "take some reasonable measures to insure that you could trust the other person." The Secretary has not explained why these warnings were insufficient, or what kind of language (if any) would have assuaged the State's concerns.

Third, the manner in which the vote-swapping mechanisms operated reduced the opportunities for widespread fraud. Any would-be fraudster would have had to exchange emails and come to a vote-swapping agreement separately with each intended victim. There was no way to "automate" the fraud, that is, to agree to trade votes without first making email contact and offering specific representations (even if bogus) to the other party about the fraudster's identity, location and voting intentions.

Lastly, the Secretary has failed to establish (or, indeed, even to argue) that the State's anti-fraud interest could not have been advanced as effectively through ... measures less burdensome than the complete disabling of the websites' vote-swapping mechanisms.... Given the Supreme Court's repeated admonishments that the government's interest in preventing fraud does not justify sweeping restrictions on constitutionally protected activity, the Secretary's failure to establish that Jones' actions were his only reasonable recourse is fatal to the Secretary's [case]....

Our conclusion is bolstered by Appellants' offer of at least two suggestions for preventing fraud short of disabling the websites' vote-swapping mechanisms altogether, neither of which was addressed by the Secretary. First, Appellants pointed out that "[m]ore stringent warnings" about the danger of fraud could have been posted on the websites, to even more clearly alert users of the need to exercise good judgment in trusting someone known only through the Internet. Second, the State could have "pass[ed] a law that said you must be who you say you are when you do this, you must be from the state you say you're from." If those who utilized the voteswapping mechanism had been required by law (or even simply the websites) to prove their identity and residency before they could have been matched with other users (perhaps by providing information such as a driver's license number or the voter registration number that is typically listed on voter identification cards), then the websites could have stopped users from swapping votes multiple times or from misrepresenting their state of residency. Although the record does not conclusively demonstrate the feasibility or effectiveness of such verification methods, it was the State's burden to rebut Appellants' suggested lesser alternatives and the Secretary did not do so.

c. Electoral College. Finally, the State's interest in preventing the subversion of the Electoral College, assuming it to be a legitimate interest, was not furthered by Jones' actions. As a technical matter, Appellants are correct that the vote-swapping mechanisms did not enable users to cast their votes in states in which they were not registered, nor could the constitutionally prescribed arrangement for selecting the President have been undermined by the mechanisms.

More fundamentally, the whole point of voteswap2000.com and votexchange2000.com was to prevent the preferences of a majority of a state's voters from being frustrated by the winner-take-all systems in place in most states. For example, in a hypothetical swing state with 49 percent Bush supporters, 48 percent Gore supporters, and 3 percent Nader supporters (all of whom we hypothesize preferred Gore to Bush), an election conducted without vote swapping would have resulted in a Bush victory even though he was not the first choice of a majority of the state's voters. However, if all the Nader supporters had swapped their votes with Gore supporters in safe states, then Gore -— who was preferred by 51 percent of the state's voters to Bush 0— would have prevailed. Such an outcome would not have represented a subversion of the Electoral College, which would have continued to operate precisely as set forth in the Constitution. It also would not have undermined the state's electoral system, which would have still allocated all of the state's electoral votes to the candidate who received a plurality of the state's popular vote. All that the vote swapping would have done would have been to offset the anomalies that its advocates believe can result when more than two candidates face off in winner-take-all systems.

[d. Preventing Vote Swapping as Such. Moved footnote:] The Secretary also hints at a fourth interest: preventing vote swapping per se, even if carried out non-corruptly, non-fraudulently and on a small scale. Such an interest, whether it is distinct or subsumed into the State's anti-corruption interest, is invalid given our conclusion above that vote swapping is a constitutionally protected activity. Even under intermediate scrutiny, the government's interest in burdening expressive conduct must be something other than a desire to impose that very burden. Moreover, such a per se rule is inconsistent with the Secretary's concession at oral argument that individual vote swaps carried out without the use of an enabling mechanism are not unlawful....

(Hide long quote.)

Thanks to lawprof Rick Hasen (Election Law blog) for the pointer, and other comments on the decision.

UPDATE: If you think vote-swapping should be constitutionally unprotected because it's analogous to vote-buying, please read this follow-up post, in which I explain why I think such an analogy is flawed.

	[Eugene Volokh, August 6, 2007 at 5:02pm] Trackbacks First Amendment Right To Create Vote Swap Site: My view: The Ninth Circuit's analysis generally seems quite right, and further reinforces the principle that even speech that creates or offers an agreement is sometimes (though not by any means always) constitutionally protected, and that it's a mistake to blithely conclude that agreements and offers are by their nature "situation-altering" and thus unprotected. See generally my Speech as Conduct article, PDF pages 64 and 58-59. The facts (throughout all the quotes, some paragraph breaks may be added, and many citations omitted): Appellants created two websites, voteswap2000.com and votexchange2000.com, that encouraged people to "swap" their votes and provided email-based mechanisms for doing so. 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. The point of the swaps, at least when agreed to by Nader and Gore supporters, was to improve Gore's odds of winning the Democratic-pledged electors in the swing state without reducing Nader's share of the national popular vote (which needed to exceed five percent in order to qualify his party for federal funding in future elections). The California Secretary of State demanded that the sites be taken down, reasoning: Your website specifically offers to broker the exchange of votes throughout the United States of America. This activity is corruption of the voting process in violation of Elections Code sections 18521 and 18522 as well as Penal Code section 182, criminal conspiracy.... The right to free and fair elections is a cornerstone of American democracy. Any person or entity that tries to exchange votes or brokers the exchange of votes will be pursued with the utmost vigor .... As the Chief Elections Officer of the State of California, I demand that you end this activity immediately. If you continue, you and anyone knowingly working with you may be criminally prosecuted to the fullest extent of the law. The site operators complied, but sued, claiming their operation of the site was protected by the First Amendment. The court held that "agreements to swap votes on election day" are "protected by the First Amendment." (It also pointed out that the pro-Nader and pro-Gore advocacy on the sites was protected, but that wasn't in doubt; the question was whether the agreement itself, and the sites' participation in bringing together people who would enter into the agreement, was constitutionally protected.) The court concluded that the agreements were presumptively protected by the First Amendment: 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. 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.... [Footnote moved:] Though Brown, is not directly on point because it involved candidate-voter rather than voter-voter communication, it generally supports our conclusion.... While recognizing that "illegal exchange[s] for private profit ... may properly be prohibited," the [Brown] Court made clear that most communication and negotiation surrounding the exercise of the franchise cannot be banned. In the Court's words, "[t]he fact that some voters may find their self-interest reflected in a candidate's commitment does not place that commitment beyond the reach of the First Amendment." In one respect, moreover, this case is easier than Brown because it does not involve any financial self-interest whatsoever. The voters in Brown could have expected to receive some (small) pecuniary advantage from the promised salary-saving. Here, in contrast, people agreed to swap votes without any promise at all of financial benefit. And the court found that the state's arguments for restricting the agreements didn't pass intermediate scrutiny. (For more on this, click here.) (The court also reserved the possibility that strict scrutiny might be the proper standard, but concluded that even under the intermediate scrutiny standard, the speech should remain protected.) The Secretary asserts three interests to justify any alleged burdening of Appellants' protected activity: preventing corruption, preventing fraud and preventing the subversion of the Electoral College. Because the concepts of corruption and fraud are related although distinct, we consider California's interest in preventing elections from being tainted by illicit financial transactions under the corruption rubric, and its interest in preventing deceptive campaign practices under the fraud rubric.... a. Corruption. Beginning with the State's anticorruption interest, we reiterate that we construe this interest to encompass only the prevention of illicit financial transactions such as the buying of votes or the contribution of large sums of money to legislators in exchange for political support. So defined, this interest was not advanced by the threatened prosecution of the owners of voteswap2000.com and votexchange2000.com. The websites did not encourage the trading of votes for money, or indeed for anything other than other votes. Votexchange2000.com actually included a notation that "It is illegal to pay someone to vote on your behalf, or even get paid to vote yourself. Stay away from the money. Just vote." And there is no evidence in the record, nor has the Secretary argued, that any website users ever misused the voteswapping mechanisms by offering or accepting money for their votes.... b. Fraud. The state's anti-fraud interest was furthered by Jones' threatened prosecution of the website owners. At least three kinds of fraud could have been perpetrated through those websites' vote-swapping mechanisms. People from other states (or even other countries) could have pretended to be third-party swing-state supporters or major-party safe-state supporters. Regardless of their location, people could have used the websites' vote-swapping mechanisms multiple times, thus trading their one vote (or zero votes) for several other votes. And even people who were truthful about their location and who only swapped votes once could have deliberately misrepresented their voting intentions. Threatening Appellants' websites with prosecution unless they disabled the vote-swapping mechanisms thus served the State's anti-fraud interest for the obvious reason that none of the above species of fraud could have been committed through mechanisms that were no longer in operation. However, the Secretary has failed to demonstrate that the burden imposed on constitutionally protected activity by the disabling of the mechanisms was not "greater than [was] essential to the furtherance of [the State's anti-fraud] interest." First, the Secretary has not called our attention to, nor have we been able to locate, any evidence in the record that fraud actually took place during the brief period that the vote-swapping mechanisms were operational. No website users came forward with either admissions that they committed fraud or worries that their counterparts misrepresented their state of residency or voting intentions. The websites' owners also did not notice any suspicious online activity, such as the use of "obviously fake or multiple e-mail addresses," which voteswap2000.com stated it would try to eliminate if it occurred. Second, as described above, both websites repeatedly warned users that fraud was possible and advised them to take steps to reassure themselves that they could trust their matched counterparts. Voteswap2000.com told users to "[u]se your own good judgement [sic] to determine if the person you are matched with is legitimate, and be aware that some people will try to abuse this system." Similarly, votexchange2000.com recommended that users "take some reasonable measures to insure that you could trust the other person." The Secretary has not explained why these warnings were insufficient, or what kind of language (if any) would have assuaged the State's concerns. Third, the manner in which the vote-swapping mechanisms operated reduced the opportunities for widespread fraud. Any would-be fraudster would have had to exchange emails and come to a vote-swapping agreement separately with each intended victim. There was no way to "automate" the fraud, that is, to agree to trade votes without first making email contact and offering specific representations (even if bogus) to the other party about the fraudster's identity, location and voting intentions. Lastly, the Secretary has failed to establish (or, indeed, even to argue) that the State's anti-fraud interest could not have been advanced as effectively through ... measures less burdensome than the complete disabling of the websites' vote-swapping mechanisms.... Given the Supreme Court's repeated admonishments that the government's interest in preventing fraud does not justify sweeping restrictions on constitutionally protected activity, the Secretary's failure to establish that Jones' actions were his only reasonable recourse is fatal to the Secretary's [case].... Our conclusion is bolstered by Appellants' offer of at least two suggestions for preventing fraud short of disabling the websites' vote-swapping mechanisms altogether, neither of which was addressed by the Secretary. First, Appellants pointed out that "[m]ore stringent warnings" about the danger of fraud could have been posted on the websites, to even more clearly alert users of the need to exercise good judgment in trusting someone known only through the Internet. Second, the State could have "pass[ed] a law that said you must be who you say you are when you do this, you must be from the state you say you're from." If those who utilized the voteswapping mechanism had been required by law (or even simply the websites) to prove their identity and residency before they could have been matched with other users (perhaps by providing information such as a driver's license number or the voter registration number that is typically listed on voter identification cards), then the websites could have stopped users from swapping votes multiple times or from misrepresenting their state of residency. Although the record does not conclusively demonstrate the feasibility or effectiveness of such verification methods, it was the State's burden to rebut Appellants' suggested lesser alternatives and the Secretary did not do so. c. Electoral College. Finally, the State's interest in preventing the subversion of the Electoral College, assuming it to be a legitimate interest, was not furthered by Jones' actions. As a technical matter, Appellants are correct that the vote-swapping mechanisms did not enable users to cast their votes in states in which they were not registered, nor could the constitutionally prescribed arrangement for selecting the President have been undermined by the mechanisms. More fundamentally, the whole point of voteswap2000.com and votexchange2000.com was to prevent the preferences of a majority of a state's voters from being frustrated by the winner-take-all systems in place in most states. For example, in a hypothetical swing state with 49 percent Bush supporters, 48 percent Gore supporters, and 3 percent Nader supporters (all of whom we hypothesize preferred Gore to Bush), an election conducted without vote swapping would have resulted in a Bush victory even though he was not the first choice of a majority of the state's voters. However, if all the Nader supporters had swapped their votes with Gore supporters in safe states, then Gore -— who was preferred by 51 percent of the state's voters to Bush 0— would have prevailed. Such an outcome would not have represented a subversion of the Electoral College, which would have continued to operate precisely as set forth in the Constitution. It also would not have undermined the state's electoral system, which would have still allocated all of the state's electoral votes to the candidate who received a plurality of the state's popular vote. All that the vote swapping would have done would have been to offset the anomalies that its advocates believe can result when more than two candidates face off in winner-take-all systems. [d. Preventing Vote Swapping as Such. Moved footnote:] The Secretary also hints at a fourth interest: preventing vote swapping per se, even if carried out non-corruptly, non-fraudulently and on a small scale. Such an interest, whether it is distinct or subsumed into the State's anti-corruption interest, is invalid given our conclusion above that vote swapping is a constitutionally protected activity. Even under intermediate scrutiny, the government's interest in burdening expressive conduct must be something other than a desire to impose that very burden. Moreover, such a per se rule is inconsistent with the Secretary's concession at oral argument that individual vote swaps carried out without the use of an enabling mechanism are not unlawful.... (Hide long quote.) Thanks to lawprof Rick Hasen (Election Law blog) for the pointer, and other comments on the decision. UPDATE: If you think vote-swapping should be constitutionally unprotected because it's analogous to vote-buying, please read this follow-up post, in which I explain why I think such an analogy is flawed. Related Posts (on one page): No En Banc Rehearing as to First Amendment Right To Create Vote Swap Site: Careful With Those Assumptions: One More Vote-Swapping Example: Bribe or Permissible Political Deal? First Amendment Right To Create Vote Swap Site: