Metropolitan News-Enterprise


Friday, March 14, 2008


Page 1


Ninth Circuit Denies En Banc Review of ‘Vote Swap’ Ruling




The Ninth U.S. Circuit Court of Appeals, over the dissent of three of its judges, yesterday denied en banc review of a ruling that allows voters in different states to exchange promises to vote for each others’ favorite presidential candidates.

A three-judge panel ruled last August that then-Secretary of State Bill Jones violated the First Amendment in 2000 by threatening operators of a website that allowed people to trade promises to vote for Al Gore in one state for promises by others to back Ralph Nader in another state in that year’s presidential race. The site shut down before the election for fear of prosecution on charges of vote-buying and conspiracy.

The court declined to allow the operators of to sue Jones for damages, saying he acted in good faith in the absence of clearly established authority on the issue and was thus protected by qualified immunity.

State May Be Sued

But the panel, reversing a contrary ruling by Senior U.S. District Judge Robert J. Kelleher of the Central District of California, said the plaintiffs may sue current Secretary of State Debra Bowen for prospective injunctive relief because the state has not promised that it will refrain from prosecuting them if they organize another vote-swapping site in the future.

It was the second time Kelleher was reversed in the case. The appellate court had previously ruled that he erred in dismissing it under the Pullman abstention doctrine on the ground that it touched a “sensitive area of social policy upon which the federal courts ought not enter.”

Vote-swapping sites began springing up in October 2000, usually with the intention of benefiting Nader’s Green Party candidacy. The idea was that Gore Democrats in states where their candidate was sure to be bested by Republican George W. Bush would, instead of “wasting” their votes, get a Nader supporter in a swing state to vote for Gore.

Pro-Gore Effort

The idea was considered by many to be a win for the Gore team, because the Democrat had been worried about losing crucial votes to Nader in swing states but now could get some of the Nader people to vote for their man instead. In exchange, the Gore voter in a Bush state would agree to vote for Nader.

Nader had no chance of carrying any state, but his backers were aiming for at least 5 percent of the popular vote nationwide, which would have been enough to qualify a 2004 Green Party presidential candidate for federal funding., based in Washington, D.C., went up Oct. 1. It was followed by in Wisconsin, then Nader’sTraders,,, and a host of other informational and “voter matching” sites.

Citing the California Elections Code, Jones sent a cease and desist letter to the founders of, threatening criminal prosecution for allegedly brokering the illegal exchange of votes.

“Any person or entity that tries to exchange votes or brokers the exchange of votes will be pursued with the utmost vigor,” Jones wrote.

The threats were reported in newspapers, and one of the operators of the plaintiff,, decided to shut down out of fear or prosecution.

Several days later,’s Alan Porter, joined by several other individual Californians and residents of Massachusetts and UCLA’s Democratic Law Students Association, and represented by the ACLU Foundation of Southern California and Harvard constitutional law professor Laurence Tribe, sued Jones, alleging his action deprived them of their free speech and free association rights.

In ruling for the plaintiffs on the merits, the Ninth Circuit panel cited Brown v. Hartlage (1982) 456 U.S. 45, which held unconstitutional Kentucky’s application of its Corrupt Practices Act to a county commission candidate who promised to cut the salaries of commissioners. The state courts held that the candidate was buying votes by promising to save the voters money that would otherwise go to commissioners’ salaries.

But Ninth Circuit Judge Andrew Kleinfeld, joined yesterday by Judges Diarmuid F. O’Scannlain and Carlos Bea in a dissent from the denial of en banc review, said Brown was inapposite.

“The reason why the candidate’s promise [in Brown] was legitimate was that it amounted to a promise to govern in a particular way, not to give voters something privately in exchange for their votes,” Kleinfeld wrote. “...By contrast, the case at bar does not involve any promise by a candidate to govern in a particular way. Instead, the scheme was just what Brown says is not constitutionally protected speech: the solicitation of private arrangements to evade the ‘normal processes of government.’”

Evoking images of “Bloody Kansas” in the 1850s, when pro-slavery Missourians flooded into the Kansas territory in order to vote for keeping slavery legal there, Kleinfeld predicted the decision would lead to great mischief.

The case is Porter v. Bowen, 06-55517.


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