E-Vote: Vote-Swapping Web Sites Protected by First Amendment, Says Court

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" Web sites are protected by the First Amendment.

A number of these Web sites sprung up in the last weeks of the 2000 campaign between George W. Bush and Al Gore that allowed third-party supporters of 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.

The sites were quickly shut down when then-California Secretary of State Bill Jones sent letters to operators of a Web site 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 Web site 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 Web site 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 Web site operators and voters to maintain and use such sites in future presidential elections, said Demos in a release.

"Technology changes the way politics work, but it doesn't alter the basic principles of democracy," said Peter Eliasberg, the ACLU/SC's Manheim Family Attorney for First Amendment Rights. "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," said Lisa Danetz, senior counsel at Demos.

This is the second ruling by the 9th Circuit Court that protects the rights of vote-trading Web sites. 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. The decision is available online.