08/06/2007 05:04 pm ET Updated May 25, 2011

First Amendment Right To Create Vote Swap Site:

My view: The opinion's analysis generally seems quite right, and further reinforces the principle that even speech that creates or offers an agreement is sometimes (though not by any means always) constitutionally protected, and that it's a mistake to blithely conclude that agreements and offers are by their nature "situation-altering" and thus unprotected. See generally my Speech as Conduct article, PDF pages 64 and 58-59.

The facts (throughout all the quotes, some paragraph breaks may be added, and many citations omitted):

Appellants created two websites, and, that encouraged people to "swap"
their votes and provided email-based mechanisms for doing
so. The vote-swap mechanisms enabled third-party supporters
in a swing state such as Florida or Ohio to agree to be paired
with major-party supporters in a "safe state" such as Massachusetts
or Texas, whereby the swing-state users would promise
to vote for the major-party candidate and, in exchange, the
safe-state users would promise to vote for the third-party candidate.
The point of the swaps, at least when agreed to by
Nader and Gore supporters, was to improve Gore's odds of
winning the Democratic-pledged electors in the swing state
without reducing Nader's share of the national popular vote
(which needed to exceed five percent in order to qualify his
party for federal funding in future elections).

The California Secretary of State demanded that the sites be taken down, reasoning:

Your website specifically offers to broker the
exchange of votes throughout the United States of
America. This activity is corruption of the voting
process in violation of Elections Code sections
18521 and 18522 as well as Penal Code section 182,
criminal conspiracy.... The right to free and fair elections is a cornerstone of American democracy.
Any person or entity that tries to exchange votes or
brokers the exchange of votes will be pursued with
the utmost vigor .... As the Chief Elections Officer
of the State of California, I demand that you end this
activity immediately. If you continue, you and anyone
knowingly working with you may be criminally
prosecuted to the fullest extent of the law.

The site operators complied, but sued, claiming their operation of the site was protected by the First Amendment. The court held that "agreements to swap votes on election day" are "protected by the First Amendment." (It also pointed out that the pro-Nader and pro-Gore advocacy on the sites was protected, but that wasn't in doubt; the question was whether the agreement itself, and the sites' participation in bringing together people who would enter into the agreement, was constitutionally protected.) The court concluded that the agreements were presumptively protected by the First Amendment:

Whatever the wisdom of using vote-swapping agreements
to communicate these positions, such agreements
plainly differ from conventional (and illegal) vote buying,
which conveys no message other than the parties' willingness
to exchange votes for money (or some other form of private
profit). The Supreme Court held in Brown v. Hartlage, 456
U.S. 45, 55 (1982), that vote buying may be banned "without
trenching on any right of association protected by the First
Amendment." Vote swapping, however, is more akin to the
candidate's pledge in Brown to take a pay cut if elected,
which the Court concluded was constitutionally protected,
than to unprotected vote buying. Like the candidate's pledge,
vote swapping involves a "promise to confer some ultimate
benefit on the voter, qua ... citizen[ ] or member of the general
public" --- i.e., another person's agreement to vote for a
particular candidate. And unlike vote buying,
vote swapping is not an "illegal exchange for private profit"
since the only benefit a vote swapper can receive is a marginally
higher probability that his preferred electoral outcome
will come to pass....

[Footnote moved:] Though Brown, is not directly on
point because it involved candidate-voter rather than voter-voter communication,
it generally supports our conclusion.... While recognizing that "illegal
exchange[s] for private profit ... may properly be prohibited,"
the [Brown] Court made clear that most communication and negotiation surrounding
the exercise of the franchise cannot be banned. In the Court's words,
"[t]he fact that some voters may find their self-interest reflected in a candidate's
commitment does not place that commitment beyond the reach of
the First Amendment." In one respect, moreover, this case is easier
than Brown because it does not involve any financial self-interest whatsoever.
The voters in Brown could have expected to receive some (small)
pecuniary advantage from the promised salary-saving. Here, in contrast,
people agreed to swap votes without any promise at all of financial benefit.

And the court found that the state's arguments for restricting the agreements didn't pass intermediate scrutiny. (The court also reserved the possibility that strict scrutiny might be the proper standard, but concluded that even under the intermediate scrutiny standard, the speech should remain protected.)

The Secretary asserts three interests to justify any alleged
burdening of Appellants' protected activity: preventing corruption,
preventing fraud and preventing the subversion of the
Electoral College. Because the concepts of corruption and
fraud are related although distinct, we consider California's
interest in preventing elections from being tainted by illicit
financial transactions under the corruption rubric, and its
interest in preventing deceptive campaign practices under the
fraud rubric....

a. Corruption. Beginning with the State's anticorruption
interest, we reiterate that we construe this interest
to encompass only the prevention of illicit financial transactions
such as the buying of votes or the contribution of large
sums of money to legislators in exchange for political support.
So defined, this interest was not
advanced by the threatened prosecution of the owners of and The websites
did not encourage the trading of votes for money, or indeed
for anything other than other votes.
actually included a notation that "It is illegal to pay someone
to vote on your behalf, or even get paid to vote yourself. Stay
away from the money. Just vote." And
there is no evidence in the record, nor has the Secretary
argued, that any website users ever misused the voteswapping
mechanisms by offering or accepting money for
their votes....

b. Fraud. The state's anti-fraud interest was furthered
by Jones' threatened prosecution of the website owners.
At least three kinds of fraud could have been perpetrated
through those websites' vote-swapping mechanisms. People
from other states (or even other countries) could have pretended
to be third-party swing-state supporters or major-party
safe-state supporters. Regardless of their location, people
could have used the websites' vote-swapping mechanisms
multiple times, thus trading their one vote (or zero votes) for
several other votes. And even people who were truthful about
their location and who only swapped votes once could have
deliberately misrepresented their voting intentions. Threatening
Appellants' websites with prosecution unless they disabled
the vote-swapping mechanisms thus served the State's
anti-fraud interest for the obvious reason that none of the
above species of fraud could have been committed through
mechanisms that were no longer in operation.

However, the Secretary has failed to demonstrate that
the burden imposed on constitutionally protected activity by
the disabling of the mechanisms was not "greater than [was]
essential to the furtherance of [the State's anti-fraud] interest."
First, the Secretary has not
called our attention to, nor have we been able to locate, any
evidence in the record that fraud actually took place during
the brief period that the vote-swapping mechanisms were
operational. No website users came forward with either
admissions that they committed fraud or worries that their
counterparts misrepresented their state of residency or voting
intentions. The websites' owners also did not notice any
suspicious online activity, such as the use of "obviously fake
or multiple e-mail addresses," which
stated it would try to eliminate if it occurred.

Second, as described above, both websites repeatedly
warned users that fraud was possible and advised them to take
steps to reassure themselves that they could trust their
matched counterparts. told users to "[u]se
your own good judgement [sic] to determine if the person
you are matched with is legitimate, and be aware that some
people will try to abuse this system." Similarly, recommended that users "take some
reasonable measures to insure that you could trust the other
person." The Secretary has not explained why these warnings
were insufficient, or what kind of language (if any) would
have assuaged the State's concerns.

Third, the manner in which the vote-swapping mechanisms
operated reduced the opportunities for widespread
fraud. Any would-be fraudster would have had to exchange emails
and come to a vote-swapping agreement separately with
each intended victim. There was no way to "automate" the
fraud, that is, to agree to trade votes without first making email
contact and offering specific representations (even if
bogus) to the other party about the fraudster's identity, location
and voting intentions.

Lastly, the Secretary has failed to establish (or, indeed,
even to argue) that the State's anti-fraud interest could not
have been advanced as effectively through ... measures less
burdensome than the complete disabling of the websites'
vote-swapping mechanisms.... Given the
Supreme Court's repeated admonishments that the government's
interest in preventing fraud does not justify sweeping
restrictions on constitutionally protected activity, the Secretary's
failure to establish that Jones' actions were his only reasonable
recourse is fatal to the Secretary's [case]....

Our conclusion is bolstered by Appellants' offer of at least
two suggestions for preventing fraud short of disabling the
websites' vote-swapping mechanisms altogether, neither of
which was addressed by the Secretary. First, Appellants
pointed out that "[m]ore stringent warnings" about the danger
of fraud could have been posted on the websites, to even more
clearly alert users of the need to exercise good judgment in
trusting someone known only through the Internet. Second,
the State could have "pass[ed] a law that said you must be
who you say you are when you do this, you must be from the
state you say you're from." If those who utilized the voteswapping
mechanism had been required by law (or even simply
the websites) to prove their identity and residency before
they could have been matched with other users (perhaps by
providing information such as a driver's license number or the
voter registration number that is typically listed on voter identification
cards), then the websites could have stopped users
from swapping votes multiple times or from misrepresenting
their state of residency. Although the record does not conclusively
demonstrate the feasibility or effectiveness of such verification
methods, it was the State's burden to rebut
Appellants' suggested lesser alternatives and the Secretary did
not do so.

c. Electoral College. Finally, the State's interest in
preventing the subversion of the Electoral College, assuming it to be a legitimate interest, was not furthered by Jones'
actions. As a technical matter, Appellants are correct that the
vote-swapping mechanisms did not enable users to cast their
votes in states in which they were not registered, nor could the
constitutionally prescribed arrangement for selecting the President
have been undermined by the mechanisms.

More fundamentally,
the whole point of and was to prevent the preferences of a
majority of a state's voters from being frustrated by the
winner-take-all systems in place in most states. For example,
in a hypothetical swing state with 49 percent Bush supporters,
48 percent Gore supporters, and 3 percent Nader supporters
(all of whom we hypothesize preferred Gore to Bush), an
election conducted without vote swapping would have
resulted in a Bush victory even though he was not the first
choice of a majority of the state's voters. However, if all the
Nader supporters had swapped their votes with Gore supporters
in safe states, then Gore --- who was preferred by 51 percent
of the state's voters to Bush 0-- would have prevailed.
Such an outcome would not have represented a subversion of
the Electoral College, which would have continued to operate
precisely as set forth in the Constitution. It also would not
have undermined the state's electoral system, which would
have still allocated all of the state's electoral votes to the candidate
who received a plurality of the state's popular vote. All
that the vote swapping would have done would have been to
offset the anomalies that its advocates believe can result when
more than two candidates face off in winner-take-all systems.

[d. Preventing Vote Swapping as Such. Moved footnote:] The Secretary also hints at a fourth interest: preventing vote swapping
per se, even if carried out non-corruptly, non-fraudulently and on a small
scale. Such an interest, whether it is distinct or subsumed into the State's
anti-corruption interest, is invalid given our conclusion above that vote
swapping is a constitutionally protected activity. Even under intermediate
scrutiny, the government's interest in burdening expressive conduct must
be something other than a desire to impose that very burden. Moreover, such a per se rule is
inconsistent with the Secretary's concession at oral argument that individual
vote swaps carried out without the use of an enabling mechanism are
not unlawful....

Thanks to lawprof Rick Hasen (Election Law blog) for the pointer, and other comments on the decision.