9th Circuit Won’t Review Vote-Swapping Decision

SAN FRANCISCO (CN) - The 9th Circuit refused to rehear its decision that vote-swapping Web sites are protected by the First Amendment. A three-judge panel ruled in August of last year that former Secretary of State Bill Jones may not shut down the sites voteswap2000.com and votexchange2000.com by threatening criminal prosecution.

With the 2000 presidential election in a dead heat, the vote-swapping sites encouraged people to "swap" their votes across state lines. The voteswap2000.com site stated that its purpose was to "maximize the percentage of the popular vote that (Green Party candidate Ralph) Nader receives, yet allow (Democratic candidate Al) Gore to win the popular election."

The sites paired third-party supporters in a swing state, such as Florida, with major-party supporters in "safe states," such as Massachusetts or Texas.

The Nader supporters agreed to vote for Gore in the swing state in exchange for the Gore supporters promising to cast their ballots for Nader, who needed 5 percent of the popular vote to qualify his party for federal funding in future elections.

The panel held that any interest in preventing election fraud and corruption did not justify the "complete disabling" of vote-swapping Web sites.

Judge Andrew Kleinfeld disagreed with the majority's decision to let stand its panel ruling. "This case is about whether the First Amendment protects from prosecution people who buy votes. Instead of cash, or beer or cigars, the buyers offered promises," he wrote.

"Now that our panel opinion wraps a First Amendment blessing around exchanges of promises to vote for each others' candidates, the desirable chilling effect laws against vote buying have on schemes to buy votes this way is gone. We can expect a lot more of it."

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