Years Later, Court Upholds 'Vote-Swapping' Sites Famous From 2000

In a decision stemming from a dispute during the controversial presidential election of 2000, the 9th Circuit Court of Appeals ruled today that so-called "vote-swapping"
websites are protected by the First Amendment.

A number of these websites sprung up in the last weeks of the 2000 campaign between George W. Bush and Al Gore that allowed third-party supporters of candidate Ralph Nader in swing states to strategize with major-party voters in "safe" states about "trading" their votes to avoid handing the election to their least-preferred candidate.

Ultimately, more than 90,000 voters in Florida voted for Nader. Bush prevailed in a Supreme Court decision which found he won Florida -- and the presidency -- by just 537 votes.

The sites were quickly shut down when then-California Secretary of State Bill Jones sent letters to operators of a website threatening to prosecute them for what he called "vote-buying," even though no money or other type of financial benefit changed hands.

The ACLU of Southern California and the National Voting Rights Institute represented website operators Alan Porter (voteswap2000.com) and William Cody (voterexchange2000.com) and two individual voters, Patrick Kerr and Steven Lewis.

The case, originally filed in November 2000, argued in part that the threats by Jones violated the First Amendment rights of the website operators and exceeded the scope of Jones' authority under California's election code. The National Voting Rights Institute is now affiliated with Demos, a national, non-partisan public policy, research and advocacy center.

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 decision will be an important precedent protecting the right of website operators and voters to maintain and use such sites in future presidential elections.

"Technology changes the way politics work, but it doesn't alter the basic principles of democracy," says Peter Eliasberg, of the ACLU/SC. "Voters of any political persuasion should be able to meet like-minded voters wherever they are and organize for their candidates without threats to their freedom of speech."

"The court's decision today recognizes the importance of the Internet as a low-cost means of political communication and a vibrant forum for debate about the presidential election," says Lisa Danetz, senior counsel at Demos.

This is the second ruling by the 9th Circuit Court that protects the rights of vote-trading websites. In 2005, the appeals court overruled a federal district court that had dismissed the case shortly after the 2000 election. Today's decision confirms that vote swaps are constitutionally protected.

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Report: All Levels of Government Must Help Sole Voting Problems

How well these systems play their role in an election depends in large part on how well they are managed throughout their life cycles, which begins with defining system standards; includes system design, development, and testing; and concludes with system operations, according to a new report by the Government Accountability Office (GAO).

Important attributes of the systems’ performance are security, reliability, ease of use, and cost effectiveness, says GAO, the nonpartisan investigative arm of Congress.

Since the 2000 national elections, concerns have been raised by various groups regarding the election process, including voting technologies, GAO notes. Cogress in 2002 passed the Help America Vote Act of 2002, which helped replace older voting equipment with more modern electronic voting systems and established the Election Assistance Commission (EAC) to lead U.S. election reform efforts.

"In GAO’s view, the challenges faced in acquiring and operating electronic voting systems are not unlike those faced by any technology user—adoption and application of well-defined system standards; effective integration of the technology with the people who operate it and the processes that govern the operation; rigorous and disciplined performance of system security and testing activities; reliable measurement of system performance; and the analytical basis for making informed, economically justified decisions about voting system investment options," the GAO report says.

"These challenges are complicated by other conditions such as the distribution of responsibilities among various organizations and funding opportunities and constraints," it adds. "Given the diffused and decentralized allocation of voting system roles and responsibilities across all levels of government, addressing these challenges will require the combined efforts of all levels of government, under the leadership of the EAC."

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