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June 27, 2004

Is Vote-Swapping Legal?

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Is Vote-Swapping Legal? By Jeremy Derfner

Slate, the Industry Standard, and washingtonpost.com join forces to examine the effect of the Internet on Campaign 2000.
Last week, Jamin Raskin, a law professor at American University, published an article in Slate proposing that Ralph Nader supporters who live in battleground states (such as Michigan) swap votes over the Internet with Al Gore supporters in states where the outcome of the election is an all-but-settled issue (such as Texas). That way, Nader could get the 5 percent of the popular vote he needs to secure federal matching funds for the Green Party in 2004 without tipping swing states to George W. Bush and costing Gore the electoral votes he needs to win.

It turns out a technical writer from Washington, D.C., had already thought of the idea and launched Vote Exchange Oct. 1. A Wisconsin graduate student launched a second site, Nader Trader, the same day the Raskin article appeared. Since then, the idea has exploded. At least six other trading sites have gone up: Voteswap 2000, Nader's Traders, VoteExchange, votexchange2000, nadergore.org, and WinWin Campaign. The media has given the trading trend heavy coverage, driving hundreds of thousands of visitors to these sites. Nader Trader reports that it got more than 90,000 hits on Monday alone. It seems as if vote-trading is catching on everywhere. A Democratic club in Alabama has declared Minnesota

Because of the closeness of the race and the importance of Nader's vote in closely contested states, Internet vote-swapping has the potential to transform the election. But on Monday night, Voteswap 2000, a Los Angeles-based site, shut down after its proprietors received notice from the California secretary of state that vote-trading violated state law. Votexchange 2000, based in Stanford, shut down shortly thereafter. But the other sites are up still and running. Raskin says they're doing nothing wrong; he argues that vote-trading is legal because politicians have always done it, establishing it as a normal part of the political process.

So, is vote-trading legal or not? The answer depends on whom you ask, since the issue has yet to be adjudicated. When Vote-auction.com tried to sell votes over the Internet, it was easy to determine that the site was breaking the law; there was a clear off-line precedent. But before communications technology made organized vote-swapping possible, it was a nonexistent problem. The legal uncertainty is well expressed by a notice on one of the sites, VoteExchange: "Is what I will be doing with my partner legal?" the site asks. "Since this is your business, please consult your own legal counsel."

Each state has its own statute about corrupt election practices, and there is also a federal statute pertaining to vote fraud. The federal law is very narrow. It says it is illegal to offer your vote for something of monetary value—money, a welfare voucher, or a TV set, for example. A vote, however, does not have a tangible monetary value, and according to a Justice Department spokeswoman, the department has determined that vote-trading does not violate the federal statute.

But regulating elections is left to the states whenever possible, and the state statutes tend to provide broader definitions of corrupt practices. According to the California Elections Code, it is a crime to get "any money, gift, loan, or other valuable consideration" for "induc[ing] any other person to … vote or refrain from voting for any particular person or measure." Thus the legality of vote-swapping in California hinges on how the courts might define various terms—whether a vote counts as a "valuable consideration" and whether an offer to trade votes counts as an "inducement." The California secretary of state thinks they do, but a number of experts disagree.

John Bonifaz, executive director of the nonpartisan National Voting Rights Institute, says vote-trading is protected by the First Amendment. Voting is political speech, and vote trading simply improves the quality of a vote, allowing voters to get "what they want with respect to their second choice as well as what they want with a third party," he argues. And then there is Raskin's argument that vote-trading is a time-honored tradition of legislatures at every level of government. Based on the federal statute, these familiar forms of log-rolling and pairing-off are clearly permitted. But it might be argued that under some state statutes, office holders who trade votes are breaking the law and simply avoiding prosecution.

The great irony here may be how Nader the grass-roots candidate will be out-grass-rooted by his supporters. Nader criticizes the major parties for failing to offer voters a real choice, but his supporters do not necessarily like the impractical choice he offers either. So, without official sanction, or even their candidate's approval, they are trying to make a more complex choice.

Update, Nov. 2: The National Voting Rights Institute and the American Civil Liberties Union of Southern California will file a lawsuit later today on behalf of the proprietor of votexchange2000, one of the vote-trading sites that shut down after the California secretary of state threatened legal action. The plaintiffs, who hope to get an audience with a judge today or tomorrow, are seeking a temporary restraining order that would allow the sites to go live again without fear of prosecution.

Jeremy Derfner, a former Slate editorial assistant, is a graduate student in American history at Columbia University.

06:20 PM in Campaign Updates |

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