Nick Krieger (@nckrieger):
Let’s say you are a registered Michigan voter. You’d like to support Libertarian presidential candidate Gary Johnson, but you really dislike Republican presidential candidate Donald Trump. You want to vote for Johnson, but you know that a vote for Hillary Clinton would be more effective in preventing Trump from winning Michigan’s 16 electoral votes.
You call your friend who lives in Massachusetts; he is planning to vote for Clinton. You agree that, because Clinton is almost certain to win Massachusetts, you will swap votes. In order to help stop Trump in Michigan, you will vote for Clinton. In exchange, your friend agrees to vote for Johnson in Massachusetts.
Is your vote-swapping agreement legal?
Federal statute and state statute both prohibit offering or accepting payment or anything of value in exchange for a vote. But if you and your friend merely agree to swap votes, without exchanging money or anything else of value, are you violating these laws?
In Porter v. Bowen, 496 F.3d 1009 (CA9, 2007), the United States Court of Appeals for the Ninth Circuit concluded that this type of vote swapping (in that particular case, it was facilitated through a website that paired voters in “swing states” with voters in “safe states”) is entitled to constitutional protection as expressive conduct under the First Amendment. The Court of Appeals noted that, while the First Amendment is not offended by laws prohibiting the buying of votes, no money was being exchanged through the vote-swapping mechanism in question. Id. at 1020. The Court observed that vote-swapping 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).” Id. “[U]nlike 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.” Id. (citation omitted). “Whether or not one agrees with these voters’ tactics, such [vote-swapping] efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.” Id.
Having found that the act of vote swapping via the Internet was constitutionally protected expressive conduct, the Court of Appeals next determined that California’s laws against vote swapping were not sufficiently tailored to advance an important governmental interest. The Court ruled that the state’s interest in preventing voter fraud could be advanced through less-restrictive means, and noted that the State of California had not identified any actual fraud or corruption tied to the vote-swapping website. Id. at 1023-1025.
The State of California sought en banc review of the Porter decision. A majority of the Ninth Circuit judges voted to deny the petition for reconsideration. However, three judges dissented, opining that the vote-swapping activity in question was a species of illegal vote buying, and therefore not constitutionally protected. Porter v. Bowen, 518 F.3d 1181-1183 (2008). The three dissenting judges believed that the voters at issue were effectively “buying” each other’s votes using their mutual promises as consideration.
What about Michigan law? Michigan’s statutes specifically prohibit the offer or acceptance of “valuable consideration” in exchange for a vote; but they do not mention the offer or acceptance of a mere promise to vote in a certain way. Would such a promise constitute “valuable consideration” under Michigan law? I doubt it, but I have no special insight and obviously can’t say for certain. A related Michigan law prohibits the use of “bribery . . . or other corrupt means or device” to influence a person’s vote. Would a vote-swapping agreement violate this provision? Again, it simply isn’t clear.
In the end, the important question is whether vote swapping is constitutionally protected expressive activity. After all, if it is, these state statutes might be unenforceable. As noted above, the only reported judicial decision on point holds that vote swapping is protected First Amendment conduct. But we have no way of knowing how other courts might rule.
And bear this in mind: How do you know that the person with whom you are swapping votes will actually vote as he or she promises? Quite simply, you don’t. Your friend in Massachusetts might promise to vote for Gary Johnson. But when Election Day arrives, he might change his mind and decide to pull the lever for Hillary Clinton. Because of the secrecy of the ballot, you’ll never know for certain whether your vote-swapping agreement was actually honored. (I’ll save the issue of “ballot selfies” for another day; suffice it to say that they will remain prohibited in Michigan for this year’s election.)
As Porter indicates, vote swapping is likely a form of constitutionally protected expression under the First Amendment — so long as it does not involve the exchange of money or valuable consideration. Nevertheless, there is always the possibility that other courts could disagree. Stay tuned; I suspect we will see more litigation in this area in the future.