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.
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.