2001 UCLA J.L. & Tech. 6

Breaking Duverger’s Law is not Illegal: Strategic Voting,
the Internet and the 2000 Presidential Election
by Marc J. Randazza1

“No body politic worthy of being called a democracy entrusts the selection of leaders to a process of auction or barter.” 2

“Censorship is the bastard child of technology.” 3

I. Introduction

As the 2000 campaign reached its climax, renegade supporters of Green Party candidate Ralph Nader countered critics’ charges that they were going to “hand Bush a victory”4 by creating websites encouraging a form of strategic voting known as “online vote-swapping.”5 In short, a Nader supporter in a hotly contested state would agree to vote for Al Gore if a Gore supporter in an uncontested state would vote for Ralph Nader. The object was to help deliver five percent of the popular vote to the Green Party so that the Greens would receive federal matching funds for the 2004 presidential election, while simultaneously working to prevent a George W. Bush presidency.

With the election less than a week away, and the poll margins closer than any election in recent history, the Secretaries of State of Oregon and California acted to snuff out the online vote-swapping movement. The California Secretary of State sent an e-mail to Jim Cody, co-creator of VoteSwap2000,6 a site promoting this voting behavior, threatening him with prosecution under California’s election code sections 185217 and 185228 as well as criminal conspiracy under Penal Code section 182.9 Oregon Secretary of State Bill Bradbury said online vote-swapping, even without the exchange of money, violated his state’s election laws.10 Bradbury sent desist letters to six vote-trading sites all based outside Oregon, informing them that they would be subject to civil penalties in Oregon if they facilitated the trading of votes.11

If the First Amendment means anything, it means that Americans have the right to speak freely in a public forum on matters of political importance.12 With the rise of the Internet as a powerful medium of mass communication, this core value does not change.13 Now, anyone with a dial-up account “can become a town crier with a voice that resonates farther than it could from any soapbox.”14 With the almost instantaneous democratization of mass communication through this new medium, social and political institutions and leaders are understandably confused about how to cope with questions about freedom of speech, association, and assembly in the context of cyberspace. This fact became starkly apparent, with great repercussions, in the waning days of the 2000 presidential race when the Secretaries of State of Oregon and California may have tipped the scales in the closest U.S. election in recent history.15

Were vote-swapping sites truly corrupting the electoral process? Is this conduct that falls within the boundaries of political speech and freedom of assembly, subject to the highest level of First Amendment protection? Or is it the same as buying a vote and contravening the one-citizen one-vote ideal? Did the Secretaries of State of California and Oregon step on the most precious of American rights and alter history in the process?

This article will introduce the reader to the concept and practice of vote-swapping. It will then examine the chilling effect of the threats of prosecution and its possible consequences. The actions of the Oregon and California secretaries of state will be analyzed under their respective state laws and constitutions, and finally vote-swapping will be examined under federal election law and the U.S. Constitution.

II. Strategic voting and Democracy in the Internet Age

  A. Political Action in Cyberspace

Online networks have created a rapid global communication system.16 As the grandfather of all computer networks, the Internet provides citizens with “the opportunity to engage in an unprecedented communal process of sharing information and creating new knowledge.”17

In recent years, political candidates, parties, and political action committees have recognized the Internet’s potential as “a powerful campaign tool with the potential to significantly influence the outcome of [elections].”18 The massive communicative power of the net makes it a super-broadcasting tool that allows anyone to jump into the political fray, regardless of their economic means.19

In July of 1989, an organization of Chinese students living in the U.S. organized a lobbying campaign to persuade Congress to protect them from Communist Chinese threats of reprisal for their support of the Tiananmen Square demonstrators.20 The lobbying committee used e-mail and Internet newsgroups to organize 20,000 students at 160 colleges and universities and gain widespread media attention with only four days notice.21 The bill passed, “but the students would never have been able to mount this effort without the use of telecommunications to coordinate the disparate chapters within their coalition.”22

Also in 1989, a group of 20 activists in Santa Monica, California, organized the SHWASHLOCK (showers, washers, and lockers) movement online.23 “They eventually overcame neighborhood and City Council resistance, obtaining a $150,000 line item in the budget and approval for converting an old bath house to a facility for the homeless.”24 The group also created a job bank co-op for the homeless and a campaign to include Santa Monica schools in an international program to educate school children about electronic communication.25 A follow-up survey of the activists revealed that “it was the online process that enabled the group to plan and execute these various efforts.”26

The Christian Coalition used its website on July 7, 1994 to urge its allies to contact Congress and demand an end to federal support for the National Endowment for the Arts.27 Three days later a group of freshman Republican Congressmen called for an end to federal support for the NEA.28 Analysts credit the online coalition building power of the Internet for this victory.29

These actions could have been accomplished without the Internet, despite Bonchek and Schwartz’s claims. Had the Chinese students or the Christian Coalition owned a TV network, or possessed enough funds to buy sufficient airtime to make their cause heard nationwide, the result may have been the same. In these examples, the Internet brought power to people who otherwise might not have had such a powerful voice, but their actions were not unique to cyberspace. The Internet acted as a tool of democratization, but the conduct was not entirely Internet-dependent.

The next level of using the Internet for a political action tool is the actual use of the “space” of cyberspace as a “place” for the creation of online coalitions.30 Bart-Jan Flos of the Politeia Network for Citizenship and Democracy in Europe suggested the use of the Internet to form coalitions led by already-elected politicians.31 Bonchek and Schwartz demonstrated the strength of the Internet as a replacement for capital in the organization of grassroots political movements.

The idea of the Internet as political organization tool really evolved into a new creature in November of 2000. Instead of being used as an alternative to phone banks and expensive advertising, Internet vote-swapping was a coalition building movement unique to cyberspace and with the potential for massive political repercussions.

  B. Strategic Voting

The purpose of an election is to gauge the preferences of the electorate. However, in simple-majority single-ballot systems as we have in the United States, some voters who would prefer the leadership of a third-party do not vote for their preferred candidate.32 Strategic voting33 occurs when a voter abandons his preferred candidate in favor of another because of the specific election context.34 Usually this occurs when the voter’s most preferred candidate is a less viable candidate than the two front-runners in an election, and to reduce the chances of their least-preferred candidate winning, the voter will select a lesser choice among the front-runners.35 Traditional political science and logic tells us that the net effect of this will be to diminish the number of viable political parties.36 The electorate will reach an equilibrium under which only the two dominant candidates survive, and third parties are marginalized to the point of non-importance – the Duvergerian equilibrium. 37 This occurs in American presidential races. Alternatively, a non-Duvergerian equilibrium may be reached when there is a clear front-runner, but the two candidates fighting for second place are of sufficient parity that neither candidate’s backers are willing to forego their support.38 However, in the 2000 presidential election online vote swapping actually acted to increase support for a minor party, the Greens, instead of following Duverger’s law. Furthermore, some supporters of the Democratic candidate strategically cast their vote for a minor party candidate.

  C. Strategic Voting Meets the Internet - Online Vote Swapping

As shown above, online vote-swapping transcends traditional voting behavior.39 Vote-swapping is common among our legislators as well. In the Senate and House of Representatives, members of Congress routinely support their colleagues’ bills in exchange for their promises to support their own[SK1] .40 Coalition-building was never a practical issue in presidential electoral politics because of the logistical impossibility of creating a citizen vote-swap on a scale that could have any significant impact. However, the power of the Internet made it possible.

Building an online vote-swapping coalition is simple and entirely Internet-dependent. In the 2000 election, a voter who wished, for example, to support Ralph Nader might have lived in a hotly-contested “swing state” such as Florida. Assuming that the Nader supporter would have rather seen Al Gore elected than George Bush,41 this put him in a quandary. Was he to vote his conscience, and actually contribute to his third choice, at the expense of his second choice?42 An alternative was to contact a Gore supporter in an uncontested state, such as Massachusetts. The Nader supporter in Florida and the Gore supporter in Massachusetts both recognized that Gore could easily carry Massachusetts and they would agree that taking a few votes from Gore in a Democratic stronghold would have no impact on Massachusetts’ electoral votes. The Gore supporter in Massachusetts could agree to cast her vote for Ralph Nader, giving the Green Party one more vote toward their magic five percent.43 In turn, the Nader supporter in Florida cast his vote for Gore, giving Gore that much more support in a hotly-contested and ultimately pivotal state.44

James Ridgeway explained the concept of online vote-swapping in a Village Voice in September, 2000.45 Ridgeway reported that since the election promised to be so close, Nader supporters were concerned that their efforts could bring about a conservative victory.46 Many believed that if Nader were not running, Gore would have been more securely in the lead in the late days of the campaign.47 Concerned with spoiling Gore’s chances in what was never more than a two-way race, Nader supporters got to work. On October 1, 2000 Steve Yoder, a Washington, D.C. technical writer, launched Voteexchange.org.

By October 2, 2000 conservative voters were in the act as well. On that day a message board for the FreeRepublic.com48 began encouraging Libertarians, Constitutional Party Supporters, and Reform Party voters to vote-swap with Bush voters in Massachusetts, New York, and Washington, D.C.49 However, the conservative vote-swappers did not gain the same momentum and media attention as the “Nader-traders.”

The idea didn’t truly catch fire until an American University constitutional law professor, Jamin Raskin, promoted the idea in the MSN online magazine Slate on October 24, 2000.50 In his article, Raskin explained that the presidential race had narrowed by that date so that “a strong showing by Ralph Nader in 10 swing states could give George W. Bush the 270 Electoral College votes he needs to win.”51 Raskin believed that this reality presented hundreds of thousands of progressive Nader supporters in swing states with a dilemma. Upon the publication of Raskin’s article, hits to the vote-swapping sites increased exponentially. VoteExchange.org arranged 500 swaps in one week. After the Raskin article, VoteSwap2000 arranged 500 trades in 24 hours, and in its short life exchanged more than 5,000 votes.52 Votetrader.org claimed that it arranged 15,000 vote exchanges in several battleground states.53

What irked the Secretaries of State of both Oregon and California, however, was not the mere advocacy of trading votes. Although both offices acknowledged the illegality of citizens contracting to trade votes, neither sought (after November 3) to restrain the mere suggestion of doing such a thing. The websites that both states targeted were the sites that facilitated the process itself by the use of computerized databases. These website users identified their states of residence, their preferred candidates, and their preferred major-party candidates.54 The program then indicated to the user whether their state was a contested or a non-contested state. Then users could enter their e-mail addresses, and the computerized database would find a matching voter in another state and send an e-mail to each voter. At that point it became the voters’ responsibility to agree to swap votes.55

Both Secretaries of State regarded this online automated networking as the application of undue influence in the voting process, in direct violation of their respective states' laws.56 However, the Secretaries of State posited that sites espousing the same political message were permissible under California57 and Oregon58 law; it was the conduct of “brokering” votes that was explicitly prohibited under California law,59 and the application of “undue influence”60 that ran afoul of Oregon law.61

When vote-swap participants agreed to exchange their votes, they engaged in speech and association related to a campaign for political office. Each voter convinced the other to change his or her vote in order to achieve a common political goal. There was no exchange of money or goods and there was no enforceable binding arrangement.62

The Secretaries of State certainly achieved their goals to end the practice when they moved against the vote-swapping sites. Although nobody was certain whether prohibiting vote-swapping was constitutional, the chilling effect brought about by the letters from Oregon and California was immediate.

III. The Chilling Effect

  A. What is the Chilling Effect?

The Supreme Court defines “chilling effect” as the “collateral effect of inhibiting freedom of expression, by making the individual the more reluctant to exercise it. ”63 This effect is recognized as impacting free association rights,64 as well as free speech rights.65 A chilling effect exists when citizens are apprehensive to exercise their rights to free expression or free association due to the threat of the expense and inconvenience of criminal prosecution.66

Of course, any threat of criminal or civil prosecution will by necessity “chill” the activity it threatens. Dicta in Near v. Minnesota67 instructs us that “publication of the sailing dates of [military] transports or the number and location of troops” may be lawfully restrained.68 Therefore, a chilling effect is not necessarily unconstitutional, but its existence can stifle “the flow of democratic expression and controversy at one of its chief sources. ”69

  B. Was there a Chilling Effect?

The California and Oregon Secretaries of State’s demands to shut-down the vote-swapping sites sent shivers through cyberspace, affecting website operators nationwide.70 The day after California contacted VoteSwap2000, the website contained the following:

We are not lawyers . . . Our advice is to err on the side of caution, and if you can't determine for sure that you are not in violation of any laws, you should not participate in vote-swapping.71

Despite their support of Ralph Nader, and the questionable constitutionality of the Secretaries’ actions, none of the site operators were willing to risk prison or fines. At least three vote-swapping sites closed down immediately after Jones’s letter to VoteSwap2000 became public, citing threats of litigation as their reason for ceasing operations.72 One Florida-based site, PresidentGore.com73 was designed to specifically exclude Californians because its operator was uncertain of California’s jurisdiction over it.74 Without determining whether the Secretaries of State’s actions were permissible or unconstitutional, it is not far-fetched to theorize that Secretaries of State may have had a profound effect on the outcome of the 2000 presidential election by creating a nationwide “chilling effect” on the publication and use of vote-swapping websites.75

  C. What were the electoral consequences of the chilling effect?

Had the 2000 election been decided by a large margin, this debate would still be of constitutional importance due to the fact that the idea of online vote-swapping was crushed by the mere threat of prosecution.76 However, because the entire election was resolved by a razor-thin margin in the State of Florida, it is easy to speculate that the vote-swapping movement could have had a profound effect upon the outcome of the election. In fact, as late as November 17, 2000, pundits claimed ‘Nader Traders’ could have tipped Florida toward Al Gore.77

Voteexchange2000.org arranged 257 exchanges for Florida voters between October 26 and October 30, 2000 when it shut down due to fear of prosecution.78 Given the fact that the buzz surrounding the vote-swapping phenomenon had just begun, it is likely that the rate of votes being swapped would have increased up until election day.79 However, had the rate not changed, 2056 votes would have been exchanged, by this one site, in Florida alone. That many more votes for Al Gore in Florida would have given 25 more electoral votes to Al Gore nationally, and thus would have changed the outcome of the 2000 presidential race. In fact, had the sites continued to run, the circus following the election may never have occurred. Alternatively, had the sites been shut down immediately, the race may not have been decided by such a close margin, and George W. Bush may have been able to claim victory on Tuesday, November 7 instead of waiting until December.

The effect upon the election is not mere hindsight. With the 2000 presidential campaign entering its waning days, it was a cliffhanger between Al Gore and George W. Bush. With less than a week to go, no pundits could definitively predict who was actually in the lead. With a total of 538 electoral votes up for grabs and 270 needed to win the presidency, as of November 1, 2000, ABCNEWS.COM reported that Bush held 213 electoral votes securely to Gore’s 182 and 143 were too close to call. By November 3, CNN.com reported 171 for Gore, 225 for Bush, and 142 up for grabs.80 Meanwhile Reuters reported that Bush had 217 electoral votes solid or leaning toward him, while Gore had 200, and 121 electoral votes were too close to call.81

Making this all more interesting was the candidacy of Ralph Nader, the Green Party’s nominee for President. The Greens, previously not much of a force to be reckoned with in American politics, promised to have a resounding influence over who would be elected president in the year 2000. The Florida polls as of November 3 showed Gore with 46% of the vote, Bush with 42% of the vote, and Nader with 6%.82 With a margin of error of +/- 4%, Florida’s all-important 25 electoral votes remained unclaimed. Pennsylvania’s 23 electoral votes were similarly precarious with 45% supporting Gore, 41% supporting Bush, and 8% supporting Nader.83 Washington, formerly narrowly in the Gore column84 went to a dead toss up on Nov. 3 with 44% supporting both Gore and Bush and 6% supporting Nader.85 Nationally speaking, as of October 27, 2000, 56 percent of Nader supporters said that if Nader was not running, they would have voted for Gore, while 23 percent favored Bush, and 21 percent would not have voted at all.86 Given these numbers, had Nader not been in the race, Gore would have appeared to have a firm lead in Florida, Pennsylvania, and Oregon a week before the election.

As the wind blew out of California and chilled vote-swapping operations nationwide, the national race for electoral votes was tight, with Bush holding 217 likely votes, Gore holding 200, and 121 too close to call.87 With the race as close as it was, even New Hampshire’s four electoral votes, traditionally forgotten about the day after its primary race88 were still important enough that neither campaign had abandoned the state (Bush 45%, Gore 40%, Nader 5%).89

Given the closeness of the election at this point, the Secretaries of State should have foreseen the potential effect upon the election. Did they act correctly? Had they not acted, could it have changed the outcome of the election? Were the other 48 Secretaries of State delinquent in not acting similarly? Although any effect upon the results of the election is mere speculation, at the time that the Secretaries of State acted (or didn’t act), such an effect was certainly foreseeable. The resolution of the debate over the propriety of their conduct could have great implications for future elections and the concept of democracy in a new media society.

IV. State Concerns

In the end, Federal Constitutional law will have the final word over whether vote-swapping is protected activity. However, it is important to examine both Oregon and California’s election laws and constitutions before beginning the federal analysis.90

Both California and Oregon’s Secretaries of State appear to have relied upon their respective state election laws incorrectly. This analysis of each state’s law reveals how the statutes might be misinterpreted to prohibit vote-swapping. If vote-swapping is examined in light of the respective state statutes, it is unlikely that prosecution would result in conviction.

Even if the plain language of the Oregon and California election laws was held to encompass the vote-swap websites, it is extremely unlikely that the convictions would be upheld in light of each state’s constitution. Both Oregon91 and California’s92 constitutions have been held to give greater protection to First Amendment concerns than the Federal Constitution, discussed in section VI of this article.

  A. California

The threat of prosecution sent out by Bill Jones, Secretary of State of California was doubly flawed. Under California constitutional law, his actions are void. However, his application of the statute was flawed by the plain text of the law.

    1. California Constitutional Law

The California Constitution affords greater protection to free speech and association than the Federal Constitution.93 As long as federal rights are protected, California legal principles will prevail in California State courts.94 For a complete federal analysis of vote-swapping see part VI infra.

As of Monday, November 6, 2000, VoteSwap2000’s Federal Court motion for a temporary restraining order languished as the rights of Californians and Americans nationwide were constrained due to the threatened prosecutions and the creation of “an ominous, chilling effect on the free exercise of political speech”95 and freedom of association.

Upon the receipt of prosecution threats, counsel for VoteSwap2000 should have immediately sought injunctive relief against the Secretary of State in California State Court in the form of a writ of mandate.96 This remedy is appropriate where denial of relief causes an immediate infringement on First Amendment rights.97 California courts have held that when prosecution threats create an “ominous, chilling effect on the free exercise of political speech. . .[a] petition for writ of mandate [is] appropriate.”98

Had such an action been sought, it would have been appropriate under California law to grant it. 99 However, it is not necessary to discuss the constitutional concerns under California law, since the application of the statute was not in accord with the plain meaning of the elections law.

    2. The Plain Language of the Election Law

The California Secretary of State threatened to prosecute the operators of VoteSwap2000100 for violations of California Elections Code sections 18521101 and 18522.102 These provisions prohibit citizens from giving or receiving payment or other “valuable consideration” to induce any voter to vote for a particular person or measure. Jones believed that the exchange of promises to vote for certain candidates fit the definition of “valuable consideration.” California law defines “valuable consideration as follows:

Any benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.103

Valuable consideration is not necessarily money or a material benefit.104 Consideration exists if the person to whom the promise is made loses any right he could have otherwise exercised or the person making the promise receives any benefit he would otherwise have not had.105 Both need not exist in order for there to be consideration, but if neither condition is met, there is no consideration.106

If the promise leaves a party able to perform or withdraw at will without detriment, there is no consideration and the contract is void.107 If even one of the promises given in an agreement leaves a party with the option to perform or withdraw at will, then the promise is illusory and provides no consideration.108

In comparison to “valuable consideration,” “gratuitous consideration” is defined as consideration “which is not founded upon any such loss, injury, or inconvenience to the party to whom it moves as to make it valid in law.”109 Therefore, absent the elements of valuable consideration that make it truly valuable, the consideration is merely gratuitous.

The right to vote is a right that both parties might otherwise exercise, as was the right to refrain from voting, or the right to vote for whomever they pleased. The promises made did not change this condition. When a voter agreed to swap her vote with another person, she retained all of these rights. Her pledge was unenforceable, and she was free to withdraw at any time without detriment. Therefore, at best, the agreements could be considered to be gratuitous consideration “which is not founded upon any such loss, injury, or inconvenience to the party to whom it moves as to make it valid in law.”110 The acts of vote-swappers were no more than exchanges of mere gratuitous consideration, and the website operators were working outside the scope of the statute.

  B. Oregon

Oregon Secretary of State Bill Bradbury, a Democrat, took steps far greater than the Republican Secretary of State of California by targeting sites outside of Oregon. 111 However, under Oregon law, he equally overstepped the boundaries of his state election statute and his state constitution.

    1. Oregon Elections Law

On November 2, 2000, Bradbury said online vote-swapping, even without the exchange of money violated his state’s election laws.112 Bradbury acted swiftly, and sent desist letters to six vote-trading sites that were based outside Oregon.113 Although Oregon initially also targeted sites that merely advocated vote-swapping, by November 3 the Oregon Elections Board softened its position to only prohibit entering into a contract to trade votes or facilitate such activity.114 Sites that merely advocated vote-swapping were no longer targeted.

Oregon’s voting corruption law states that “No person, acting either alone or with or through any other person, shall directly or indirectly subject any person to undue influence with the intent to induce any person to register or vote in any particular manner.” 115 The statute defines “undue influence” as including the “giving or promising to give money, employment or other thing of value.”116

Oregon’s Secretary of State interpreted “thing of value” to include the exchange of a co-equal vote. Therefore, according to the State Election Division, any individual pair of voters engaging in an arrangement to swap votes are in violation of Oregon law,117 as is any website operator who facilitates such an arrangement.

Analysis of this concept under Oregon law hinges on the question: Is a vote a “thing of value that would be used to induce a person to vote?” There is only one reported case in Oregon that has interpreted ORS § 260.665. Although it offers a nearly perfect roadmap for analysis of this issue under Oregon law, due to a procedural technicality it offers little in the way of precedent upon which a court, the Secretary of State, or citizens can rely.

Oregon Republican Party v. State of Oregon (“Oregon Republican I”)118 dealt with a plan by the Oregon Republican Party to mail applications for absentee ballots with the voter’s name pre-printed on them. The application was to include a letter urging the voter to apply for an absentee ballot if the voter was unsure of being able to vote on election day, and a postage-paid envelope in which the voter could send the application to Republican party headquarters.119 The party would then have forwarded the applications to the county clerk, who would have sent the ballots to the individual voters.120 The Republican Party sought a declaration that the mailing would not violate the election statute and the Circuit Court of Marion County, Oregon held that it would violate the statute due to the fact that the stamped envelope was a “thing of value.”121

The Republican Party appealed to the Court of Appeals of Oregon, which reversed the finding of the Circuit Court, and agreed that such a mailing would not violate ORS § 260.665.122 The court opined that when considering whether “a postage paid envelope is a thing of value that would be used to induce a person to vote,” the parties had incorrectly focused on the first part of the question.123 The decisive factor was not whether the stamped envelope was valuable consideration, but rather whether there existed intent to induce persons to register or vote.124 Since inducement requires a “promise of an advantage as a result of performing the desired act; it is persuasion coupled with a benefit or the absence of a threatened detriment.”125 Therefore, in order for inducement to exist, there must be a benefit greater than what is involved in the act of voting, something with independent value to the voter.126 The court held that the envelope was a “thing of value,” but that it did not reward the act of voting.127

This would appear to quell the vote-swap controversy, at least in the State of Oregon. However, Oregon Republican Party v. Oregon was rendered moot upon appeal to the Supreme Court of Oregon (Oregon Republican II).128 The Supreme Court of Oregon reasoned that the issue was mooted because the election was over.129 While not accepting that the doctrine of “capable of repetition, yet evading review” existed in Oregon, the Supreme Court of Oregon stated that if it did exist, the doctrine would not apply to this case.130 Because the Republican Party did not allege that it intended to utilize the same plan in the future, the issue evaded review.131 Therefore, the decision of the Court of Appeals in Oregon Republican I was reversed and remanded with instructions to dismiss the appeal as moot.132

The Court of Appeals obediently wrote, in a per curiam opinion “Dismissed as moot. Oregon Republican Party v. State of Oregon, 301 Or. 437, 722 P.2d 1237 (1986).”133 (Oregon Republican III). However, in a scathing concurrence, Judge Van Hoomissen foresaw the vote-swap controversy when he wrote:

The Supreme Court could have decided the issue on its merits and should have done so. Meanwhile, political parties, campaign committees, candidates and public officials responsible for enforcement of the election laws are left guessing about the legality of the conduct proposed here. More litigation, more expense and more delay are the only results of the Supreme Court’s directive to this court.134

    2. Oregon Constitutional Analysis.

Judge Van Hoomissen not only foresaw the issue before Oregon today, but offered in his concurrence in Oregon Republican I, guidance to the resolution of this issue on free speech grounds. In examining the legislative intent behind ORS 260.665, he wrote: “an election offense does not exist unless the act tends to produce the types of evils that the statute was designed to avoid.”135 Judge Van Hoomissen’s concurrence states that it is consistent with his interpretation of the statute to say that the giving of a thing of value does not include the giving of an item or service that does no more than facilitate the act of deliberative voting.136

Judge Van Hoomissen noted that the court did not address the Constitutional aspects of the case that he believed were present, but suggested that the application of ORS § 260.665 in this manner was violative of Article I § 8 (freedom of speech) 137 and Article I § 26 (freedom of assembly)138 of the Oregon Constitution. He also opined that it could have violated the First and Fourteenth Amendments of the U.S. Constitution, but if either the freedom of speech or freedom of assembly articles of the State Constitution are violated, it is not necessary to analyze the effect under the Federal Constitution.139 In some circumstances, the Oregon Constitution provides greater protection than the First Amendment to the U.S. Constitution,140 but the Oregon and Federal constitutions are considered to be similar enough that Oregon courts will usually rely on federal cases that interpret the First Amendment, even when they are interpreting the Oregon Constitution.141 For a complete analysis of vote-swapping under the Federal Constitution see section VI of this paper.

Bradbury’s application of ORS § 260.665 impacts First Amendment rights to freedom of speech and assembly. The websites expressed political opinion, and facilitated the assembly of citizens to achieve a common political goal. Accordingly, the application of the statute must be subjected to strict scrutiny under the state constitution.142

Initially, Bradbury’s actions implicated both Article I § 8 and Article I § 26 of the Oregon Constitution. However, given his re-statement of his position on November 3, only § 26, the Oregon Constitution’s guarantee of freedom of association, was implicated.143 This provision states in pertinent part: “No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good . . .”144

Therefore, the constitutional question becomes one of whether or not under Oregon law an unqualified constitutional prohibition against laws suppressing freedom of association can be overridden by the actions of a Secretary of State that directly restrain freedom of association.145 This is a logical proposition that the Supreme Court of Oregon has already rejected.146 If the Secretary of State threatened citizens with prosecution, and if such threats result in a restraint of Oregonians from assembling together to consult for their own common good, a balancing test is neither necessary nor proper.147

Had suit been brought in Oregon court, it would have been proper to enjoin the state from further threats or prosecution. At this point, any citizen who can allege that they intend to engage in this type of conduct in an upcoming election would have standing to file suit in Oregon and would, based on the logic in the Oregon Republican Party trilogy of cases, stand an excellent chance of prevailing.

V. Federal Election Law -- 42 U.S.C. § 1973i(c)

The federal law that parallels the state laws invoked by Oregon and California is the federal vote-buying statute, 42 U.S.C. § 1973i(c). This law prohibits conspiring “with another individual for the purpose of encouraging his false registration to vote or illegal voting, or pay or offers to pay or accepts payment either for registration to vote or voting . . .”148 Amidst a backdrop of action by state officials, the U.S. Justice Department failed to move against any of the vote-swapping website operators. A spokesperson at the Department was quoted as saying that because the sites “serve as a clearing house, there is no pecuniary exchange, and it is an agreement amongst private parties,” there is no violation in terms of voter fraud.149

The case law interpreting 42 U.S.C. § 1973i(c) suggests that this analysis was correct. It is clearly a violation of the statute to pay for a vote or even registration to vote, whether the voter is paid $50,150 $3,151 or $1.152 Furthermore, it is not necessary for the government to prove that vote-buying schemes actually had an effect upon a federal election.153 All that is necessary to establish a violation of § 1973i(c) is evidence that a defendant bought or offered to buy a vote and that such activity exposed the federal elements of the election to the mere possibility of corruption.154 For “corruption” to exist, there must be at least an offer of pecuniary gain to the voter. 155 Whether the actual corruption takes place or whether the participants in the scheme intended that it take place is irrelevant.156

The definition of “payment” in §1973i(c) is not necessarily limited to the transfer of money or a monetary equivalent.157 The legislative history of the Act makes it clear that Congress contemplated an exchange of a benefit beyond actual cash.158 The Congressional Record shows that non-monetary payments would qualify as “payment.”159 However, the Fifth Circuit held that this definition is limited to benefits of a truly pecuniary nature.160 Benefits such as the assistance of a civic group to prospective voters or even a continuance of employee’s fringe benefits are not prohibited by the statute.161

Although most of the limited case law interpreting the statute indicates that vote-swapping would not be illegal under § 1973i(c), it is not overwhelmingly so. Arguably, agreeing to exchange a vote for a vote is tantamount to exchanging a vote for a governmental benefit (a vote) to which the voter is already entitled. In United States v. Garcia,162 voters received welfare vouchers in exchange for their votes. The Fifth Circuit found that although the recipients were already eligible for this government benefit, and thus were not receiving anything they were not otherwise entitled to, the receipt of the vouchers still amounted to a pecuniary benefit since the vouchers came in specific dollar denominations and could be directly exchanged for goods as if they were cash.163 The court further recognized that the voters stated that they believed that receipt of the vouchers depended upon how they agreed to vote, and not upon their eligibility.164

Although the Garcia analysis would be a stretch, a zealous prosecutor could take action against a vote-swapping site by relying upon this logic. If this issue arises again, and the party in power does not stand to benefit, as it did in 2000, federal conduct may be entirely different.

VI. Federal Constitutional Concerns

The acts of the Secretaries of State of Oregon and California touch upon the core of constitutionally protected necessities for democracy – the trinity of speech, assembly, and association.

Freedom of speech is necessary in a self-governing society.165 The Constitution seeks to protect speech from government intervention to guarantee the free exchange of ideas for the promotion of political and social change.166 When speech involves political issues the Courts have consistently recognized that protecting such speech is fundamental to First Amendment values.167 Even jurists who would protect only a narrow sliver of what is now untouchable agree that explicitly political speech must be protected.168

The rights to freedom of speech and freedom of assembly are deeply entwined169 for, like the right to free speech, the right to assemble to further a common political goal is fundamental to our system of government and law.170 Advocacy of a political point of view protected by the First Amendment, “is undeniably enhanced by group association.”171 The Constitution not only protects the freedom of citizens to join together to discuss and further their common political beliefs,172 but affirmatively demands it.173 Therefore, the right to associate for the advancement of political beliefs is “an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.”174

One could argue that the Framers of the Constitution intended to extend freedom of expression and association only to technologies existing in the 1700s.175 However, even strict textualists argue that courts must apply constitutional values to new circumstances, especially when those circumstances arise due to changes in technology.176 Cyberspace is entitled to the same degree of protection as other more traditional public forums and media.177 Online assembly, association, and speech intended to further public political goals are therefore at the core of First Amendment values.178

  A. Regulation of Vote-swap Sites Requires Strict Scrutiny.

Political speech is most zealously-guarded as the core value protected by the First Amendment,179 “[f]or speech concerning public affairs is more than self-expression; it is the essence of self-government.”180 At the very pinnacle of this core value is the notion that speech related to a campaign for political office is worthy of the “fullest and most urgent application” of First Amendment protection.181

Even the most fundamental of constitutional rights may be curtailed, however, if the infringement passes the test of strict scrutiny.182 Rights of speech, assembly, and association may be infringed only by regulations designed to serve a compelling governmental interest. The interest must be unrelated to the suppression of ideas and the means used must be by the narrowly tailored to that interest; they must be the least restrictive and least drastic means available to achieve the stated purpose.183

Application of strict scrutiny hinges on whether the restriction severely burdens rights of speech184 or association.185 If a restriction severely burdens these rights, then strict scrutiny applies.186 However, most cases eliminate this step; without examining the degree of burden a restriction creates, they simply state that if political speech or association is at issue, then strict scrutiny applies.187 In NAACP v. Alabama ex rel Patterson,188 the Supreme Court held that it is of no consequence whether the goals sought to be furthered by the association are political, economic, religious or cultural – any government action to curtail them is subject to the most exacting level of constitutional scrutiny.189

Strict scrutiny has been applied to situations involving solicitation of voters and distribution of literature within 100 feet of a polling place entrance,190 regulation of campaign promises,191 and a law prohibiting businesses from making expenditures to influence the outcome of referenda.192 If a political group’s associational rights are implicated, strict scrutiny must apply.193 Given that the users of vote-swapping sites were communicating and associating for purely political reasons, strict scrutiny must apply.

Oregon’s and California’s actions restricting the vote-swap website operators’ rights to disseminate information of a political nature taken on the eve of a pending election implicate core First Amendment values to such an extent that strict scrutiny must apply. The impact upon the rights of association of these sites’ users and potential users should independently trigger strict scrutiny. Given the fact that both groups’ rights are implicated, only strict scrutiny would be logical.

  B. Were the restrictions by the Secretaries of State content-neutral?

The Oregon and California Secretaries of States regulated protected political speech and association in a public forum. In many cases, these actions are enough to trigger strict scrutiny.194 However, to apply the appropriate level of scrutiny for examining their actions, it is necessary to first determine whether the Secretaries of State’s actions were based on content.195

Regulations are content-based when they distinguish permissible speech from impermissible speech on the basis of the ideas or views expressed.196 Courts presume that government actions are invalid when they speech due to its message, ideas, subject matter, or content.197 In fact, “[i]t is rare that a regulation restricting speech because of its content will ever be permissible.”198 This is because the government attacks the very heart of the First Amendment when it restricts speech due to the message it conveys.199 Restrictions based on the message conveyed impede society’s search for truth,200 impair the individual’s right to meaningful self-fulfillment,201 and, most applicable to the vote-swapping controversy, obstruct the ability of citizens to fully participate in a system of deliberative self-government.202

Laws that impair speech with a blind eye toward the ideas and views expressed are usually content-neutral.203 The Court has held that government may restrict all speech emanating from a sound-amplification truck regardless of the message broadcast. Billboards have been prohibited so as to minimize visual clutter and enhance aesthetics. 204 Also, the court upheld a National Park service anti-camping rule prohibiting people from sleeping on the national mall as part of a coordinated political statement because it was equally applicable to traditional campers.205 Each of these regulations impacted speech, potentially even political speech, but none was created for the purpose of impairing speech based on its message.206

According to one website operators’ counsel, the threat of prosecution turned on the particular message the sites carried: the “user’s willingness to participate in an exchange of unenforceable pledges as a methodology for communicating a political viewpoint.”207 Websites containing any other content were not subject to threats of reprisal by the government.208

The Republican National Committee had a website which permitted users to enter their names, addresses, e-mail addresses, and other personal information so that they could “Get involved with the Republican Party!”209 The Democratic National Committee had a similar website inviting visitors to sign up and “Take Action!”210 The Libertarians,211 Natural Law Party,212 and the Yahoo! personals213 each had web forms permitting users to enter their names in a database in order to communicate with other individuals with common political or social goals. The goal that the Secretaries of State considered illegitimate was the common goal of simultaneously electing Al Gore as president and helping the Green Party acquire five percent of the popular vote. As such, this does not appear to be a content-neutral regulation, but one that specifically targets the political goals of the so-called “Nader traders.” Inasmuch as they restricted websites that urged people to vote in a particular manner in a publicly-held election, the actions of the Secretaries of State are unconstitutional.214

  C. Did the regulations seek to achieve a compelling governmental interest?

Under strict scrutiny, a regulation must be narrowly tailored to achieve a compelling governmental interest.215 Although the First Amendment may be to some the most sacrosanct of rights, there are competing government interests to which the First Amendment must occasionally yield.216 For example, fair trial rights have been held to trump the First Amendment in specific circumstances.217 The need for the government to keep order outside an abortion clinic may stand above the rights of abortion protesters to spread their political message.218 And in circumstances most analogous to the issue at hand, in order to assure the public a right to “fair and honest” elections, First Amendment rights are frequently trumped219 because the right to cast a ballot in an uncorrupt election is just as important as the right to discuss that election.220

There would be little value in open debate prior to an election in which the democratic process itself was subverted by intimidation and fraud. “States have a legitimate interest in preserving the integrity of their electoral process.”221 The prevention of corruption or even the appearance of corruption, in government has been held to be a compelling governmental interest validating the restriction of constitutionally protected speech and associational rights.222 The prohibition of the giving of gifts or money to a voter in exchange for his support is permissible.223

The interest alleged by both Secretaries of State is the elimination of “undue influence”224 or “corruption”225 from the voting process in their respective states. These interests are certainly compelling state interests.226 Given this fact, Oregon and California would have little difficulty arguing that they were at least motivated to act by a desire to further a compelling state interest when they restricted the speech and associational rights of the website operators and users. However, it does not appear that their actions bore a reasonable relationship to the compelling governmental interest.

If a vote-swap is an actual situation of “bartering” of votes, it could be construed as conduct that the state can legitimately prohibit.227 However, as demonstrated above, nothing in this arrangement was truly bartered. Voters entered into a discussion and convinced one another to vote a certain way based on common political goals. The Court has drawn a distinction between entering into an exchange of this type and an illegal exchange by making the distinction between voting based on a promise of public political action and voting based on an illegal exchange for “private profit.”228

There can be no determination, or even serious assertion, that anyone entered into a vote-swap arrangement for private profit or any other form of enrichment. Perhaps if the vote-swap sites been more correctly named “vote consensus” sites, or “vote strategically” sites, they would have passed by unnoticed. ‘Barter’ only exists in this situation as a matter of semantic misfortune. The trades are unenforceable, confer no benefit upon either voter, and do not truly transfer anyone’s voting authority.229 It appears that these websites and their users engaged in political speech and association, which is activity protected by the First Amendment.230

  D. Were the regulations the least restrictive method of serving the governmental interest?

If the compelling governmental interest is the integrity of the polling process, the state may suppress fundamental rights to achieve this interest.231 However, even the most compelling governmental interest may not be promoted by broad means that suppress otherwise protected freedoms.232 Because of the danger of governmental excess and censorship of politically disfavored ideas, content-based restrictions can only be employed when absolutely necessary to achieve the interest asserted.233

Prohibiting vote-swapping websites in order to prevent corruption in the political process is misguided. Both Secretaries of State relied upon statutory provisions against the exertion of undue influence upon a voter. Were these agreements in some manner enforceable, then the voters who entered into them would enter the polls subject to the external influence of an enforceable contract preventing them from voting according to their own political beliefs. Even content-based restrictions on political speech in a public forum would be permissible if this were the case.234

However, the agreements were in no manner binding or enforceable. Upon entry into the voting booth all citizens were bound by their consciences, the desire to further their own interests, or even random chance. There can be no valid determination that any vote-swapper entered the voting booth compelled to vote by any motivation other than the desire to achieve their own personal political goals.

While the threats of prosecution placed a great burden on providers of protected content, they did not effectively address the harm they sought to prevent. The government bears the burden of demonstrating that the regulation will in fact address the problem of corruption of the electoral process.235 Since all the sites were only putting individuals in contact with one another by e-mail, an allegation of coercion is fanciful at best.236 Given the lack of proximity to the polls and voluntary nature of participation in the program, this governmental regulation of vote solicitation was an impermissible burden on speech.237

VII. Conclusion

The online vote-swapping phenomenon was thousands of people nationwide gathering in the new town square to associate for the furtherance of a common political goal. Had this happened in a traditional meeting room, few would question its legality. However, the Secretaries of State of California and Oregon reacted to new technology by imperiling the most fundamental of constitutional rights. The Constitution demands that any government actor wishing to restrict speech and assembly bears a heavy burden, one that the Secretaries of State did not carry.

The actions of the Secretaries of State were invalid under the very laws they sought to apply. As demonstrated above, California law would not characterize a swapped vote as “valuable consideration.” In Oregon, the element of “undue influence” in that state’s voting corruption law would not be satisfied.

A citizen pledging to swap votes followed her conscience, un-policed and unobserved in the voting booth.238 Even Oregon officials admitted that there was no way to ascertain how another person voted.239 A citizen using a website to pledge a vote could have changed her mind, or may not even have been a citizen or a registered voter.240 Website users could have used fictitious or multiple e-mail addresses or identities because information on the website and information concerning the entire arrangement is not verifiable.241

Even if the agreement could be verified, the end result is a vote cast to achieve a preferred political goal, albeit in a non-traditional manner. Before threatened with prosecution, these websites facilitated political association and speech.242 They asked a user a series of questions about her political goals and geographic location and then used that information to match her with another user who had complimentary political goals. Once so matched, the two voters could arrange coordinated political action.243

Ultimately, what controls this issue is that vote-swapping is protected by the Federal Constitution. Voting to achieve a political goal is the essence of democracy.244 The vote-swapping websites took the consensus-building aspect of the political meeting and political speech from the town hall and transferred it into cyberspace. That the political meeting and discussion took place in the digital world as opposed to a meeting room does not change the level of constitutional protection that should be afforded.245 While this phenomenon may have broken Duverger’s law and inverted his theories of strategic voting, no American law was broken. Online vote-swapping is legal and subject to the highest level of constitutional protection.

Footnotes