Yes, Vote Swapping, Vote Pairing, Trump Trading is Legal

From Swingvoteswap.com.  It was very tempting to play the double entendre game, but ah, fuck it ... I can tone it down once and a while.

From Swingvoteswap.com. It was very tempting to play the double entendre game, but ah, fuck it … I can tone it down once and a while.

There are a bunch of websites out there offering "vote swapping" or "vote pairing" or "Trump trading" or "vote pact" whatever you want to call it. The Reddit-lawyers are certain that this is "illegal." It is not illegal.

The idea started in 2000, when swing state voters who wanted to vote Green decided to hook up with safe-state voters who were voting for Gore. A Gore voter in Massachusetts would agree to vote for Nader instead. A Nader voter in Florida would agree to, in turn, vote for Gore. That way, the Greens get that much closer to 5% of the overall popular vote, thus getting federal matching funds in the next election – but it didn't risk pushing Bush into the White House.

In 2000, there was some question as to whether the idea was legal. I didn't have much question about it — it seemed perfectly First Amendment protected to me.

And, today, it seems to be coming around again — with a few websites and apps offering to pair you with a voter in another state to discuss swapping votes. In fact, there are a few that are even weighing what a vote is worth – so you might get three or four votes for Gary Johnson in California in exchange for a Nevada Clinton vote. Presumably, you can do it for a Trump vote too.

Of course, as soon as this popped up, it took about 30 seconds for the "Reddit Lawyers" to decide that this had to be illegal. I keep getting emails about it from people who are certain it is illegal. I guess they didn't do a little bit of research before complaining to me.

I actually wrote a paper on this issue in grad school (that I published), and then a few years later I upgraded the work to a thesis, which I then also published. The 9th Circuit cited that work (twice!) in coming to the conclusion that it was, indeed, First Amendment protected activity. See Porter v. Bowen, 496 F.3d 1009 (2007).

Last 5 posts by Randazza

Comments

  1. Spud Hosnick says

    Illegal, of course not. Enforceable agreement, certainly not. As easily enforceable as two people engaging in a suicide pact using two shots in a single gun. You go first.

    Sensible, of course not. Since one vote in one state doesn't necessarily result in any movement of the electoral college needle ….

  2. En Passant says

    Spud Hosnick says November 5, 2016 at 5:11 pm:

    Illegal, of course not. Enforceable agreement, certainly not. As easily enforceable as two people engaging in a suicide pact using two shots in a single gun. You go first.

    Yeah. I'm surprised that game theory geeks haven't jumped all over vote swapping. It's akin to the prisoner's dilemma.

  3. jb says

    Any attempt to render it enforceable would be illegal, but the basic agreement is pretty clearly legal.

    Also, subject to trolls. Were I a member of Trump's online army, I'd start pretending to be a swing state Green voter posthaste.

  4. Total says

    Since one vote in one state doesn't necessarily result in any movement of the electoral college needle

    There's a lot better chance it does in Nevada than in California.

  5. Agammamon says

    Spud Hosnick says

    Sensible, of course not. Since one vote in one state doesn't necessarily result in any movement of the electoral college needle ….

    Its not intended to. The point is to allow those who want a third party to garner a greater portion of the *popular vote* (a 5% threshold eases things significantly in the next series of elections) while maintaining the parity of their second choice major party candidate with his opponent.

    Its intended to help a third party that they prefer (but doesn't actually have a chance in hell to win) without having to worry about handing the election over to 'their guy's opponent'.

    Of course, it requires a certain amount of trust in complete strangers that would suffer no penalty should they renege.

  6. Spud Hosnick says

    @Agammamon

    Do they call you Aga or Memo for short? If vote-trading were unlawful, Congress would get zero business done. But, there is a social enforcement mechanism in that environment, because there is honor among thieves. There are people that trust complete strangers all the time, but even with less important matters, they aren't always happy with the outcome.

    If people want to believe that somebody else will tread a SECRET ballot vote with them, that's on them.

  7. Rick H says

    A perfect illustration of why instant runoff voting is infinitely more fair and logical than the all-or-nothing U.S. two-party monopoly racket. Voters are starving for a system which doesn't require putting 100% of one's support behind whoever happens to be the second-most loathsome scumbag.

  8. IForgetMyName says

    Voters are starving for a system which doesn't require putting 100% of one's support behind whoever happens to be the second-most loathsome scumbag.

    That's not unique to our system. The parliamentary system mitigates this to some extent when it comes to the executive branch, but for individual seats at the local level there's still the concern that two similar parties could split the vote and lose to a single opposition party candidate who is at odds with the majority of his constituents. The main difference is that nation wide, it's not the same two parties always coming out ahead. This means that people don't automatically assume that a third party is not viable, and I think the psychological impact of that, more than anything, is what allows multiple parties to stay relevant in these countries.

    The bigger quirk in our current system is the electoral college. Apportionment of votes vary state by state, and unless I'm overlooking something, the electors could theoretically ignore their state's popular vote and federal law is okay with that. At the state level, I have no idea whether each state's apportionment policy is a binding legal requirement or more of a strong suggestion.

  9. Martijn says

    Yeah. I'm surprised that game theory geeks haven't jumped all over vote swapping. It's akin to the prisoner's dilemma.

    These are the two situations:

    a) I am a Green voter in a swing state. I vote Democrat, the other person promises to vote Green (instead of D), but really votes for Trump. Net result: slightly higher chance that Clinton will win, slightly worse outcome for Green, no change for Trump.

    b) I am a Democrat in a non-swing state. I promise to vote Green instead of Democrat. The counterparty says they will vote Democrat in a swing state, but really votes for Trump. Net result: no change for the Democrats (I don't live in a swing state), slightly better outcome for Green (because I vote for them), no change for Trump.

    So: no gain for Trump to be achieved, while any trolling cannot decrease the chance Clinton wins.

  10. Gracie says

    What stands out to me is that people will go to lengths to manipulate any system or process, often in a way it wasn't intended, to come out ahead.

  11. Richard Smart says

    It would be strange if this were illegal while gerrymandering is not.

    More generally, jb's scenario of a Trump troll impersonating a Green voter is less than convincing. They would have to discard the attitude, the spelling errors, the… idiosyncratic grammar.

    Of course there are female Trump supporters who might be more convincing, but the Green voter could always ask the Strumpet what "idiosyncratic" meant.

  12. dan says

    @Martijn

    Your game theory analysis neglected that the person making the agreement under false pretenses is probably sockpuppeting.

    So they convince you to change your vote, but they also convince like nine other people, increasing their total impact factor.

    The way to ameliorate this would probably be, like, people agree to also share a photo of their ballot proving they voted one way or another. If they don't they're forum-banned next time, if they do they could get a little forum ribbon that says they put their money where their mouth is, that kind of thing. (You are totally allowed to divulge who you voted for, but you have to be really really careful about soliciting other people's vote because it has to be totally voluntary, coercion is a no-no).

    Well, having said all that, it won't really matter until lots of people are involved, and then it will really have a problem with fraud.

    On the whole, I feel like this is a slick way to support a third-party candidate and hedge against the risk of splitting the vote and accidentally getting the least-favorite candidate in. It's a cool idea.

  13. Encinal says

    I guess they didn't do a little bit of research before complaining to me.

    A "little" bit of research being your 100 page article?

    I can see how the websites are protected by the First Amendment, but I don't see how the actual act of vote swapping is protected by the First Amendment.

    @dan
    I believe that taking pictures of a ballot is illegal.

  14. Richard Smart says

    Dear Encinal,
    To review a 100 page article is in fact a little bit of research for a normal law office, especially when it is referred to and cited by the governing case law. Westlaw or Lexis-Nexis would have picked out the relevant text very rapidly.

  15. Castaigne says

    @Gracie:

    What stands out to me is that people will go to lengths to manipulate any system or process, often in a way it wasn't intended, to come out ahead.

    Why does it stand out to you? That's human nature, and I would think that you would assume people to do that by default.

    ===

    @Encinal:

    A "little" bit of research being your 100 page article?

    No, a little bit of research to see that this has already been decided by the 9th circuit. You can Google it.

  16. says

    I actually legitimately do not understand how this is differentiated from paying for votes. I mean, obviously "it's not money" is an answer. And I did enough effort to read the Wikipedia article (has the 9th circuit ruling! So not 100 pages after all).

    But I really don't get it. It seems to rest on the honesty of the intention. But couldn't I honestly want to trade someone a boat for a boat? That's not money either, although it has monetary value.

    And if you want to exclude things with monetary value because votes are recruited by law from having a monetary value, then: organs. If example person A is a politically motivated person really invested in National politics, who will donate an organ which has no monetary value, since you can't legally sell organs, to someone who honestly doesn't care about who wins, person B. Volkswagen is legal, but I would think the organ for vote plan would not be legal. And I don't understand what the fundamental principle difference is.

    It would still meet the criteria of "politically engaged people to support their preferred candidates into a void the election results that they feared would contravene the preferences of a majority of Voters in closely contested States. Whether or not one agrees with these photos tactics, such efforts, when conducted honestly without money changing hands, are at the heart of the Liberty safeguarded by the First Amendment."

    Can someone explain it to me? Like, in small words. I'm not arguing. I legitimately do not understand.

  17. Spud Hosnick says

    @Grifter;

    Slowly, small words. What is the economic value of a vote? Is it zero? (yes)

    In what other ways is a vote different than a boat?

  18. says

    @Spud Hosnick:

    I appreciate your reply. That said, it feels not super helpful, because it seems to have not read the concept that I outlined within the post.

    The economic value of a vote is only 0 because of the law. It's absurd to pretend otherwise, of course, and I specifically used Organs (another thing the law forces a 0 value for) to explain wherein my confusion was.

    And if you want to exclude things with monetary value because votes are recruited (sic, I meant "prevented"…or maybe "required"?… I was using my phone) by law from having a monetary value, then: organs. If example person A is a politically motivated person really invested in National politics, who will donate an organ which has no monetary value, since you can't legally sell organs, to someone who honestly doesn't care about who wins, person B. Volkswagen (sic, I means "Voteswapping) is legal, but I would think the organ for vote plan would not be legal. And I don't understand what the fundamental principle difference is.

    You could say "Well, votes are fundamentally speech, and NOT a tangible good like an organ". But that would be to say that votes don't have a tangible good, which would be saying that votes do not matter–which is not true. And you could say that the speech aspect is what makes it okay–you're exchanging your vote for a speech thing that has ancillarily a value, but that seems mere sophistry, of the kind that is rejected with "I'll just do a private porn shoot" in the very next article as not working. It's true that the equation for an organ is a little unbalanced–we have a physical item (organ) on one side, rather than votes on both sides. But it can't be the 0 value, if the organ swap wouldn't work, and it can't be the good faith, because likewise, we have good faith here, and it also can't be the benefit angle, because again, votes do have benefits. So all that leaves is the part where organs don't have a speech aspect. But if I could finagle one, would that suddenly make it kosher? Moreover, money is speech, as the court has ruled, so a thing with tangible benefits and speech aspects can't be the criteria. All that's left might be the "physicality", but votes have a measure of that, too, whether a ballot or a receipt.

    So is this mere sophistry, in the end?

  19. SlimTim says

    @dan
    A photo of a filled out ballot doesn't prove who was voted for. The voter could have told the election judges that he/she made a mistake while filling out the ballot and exchanged it for a fresh one (most, if not all, states allow this).

    @Encinal
    The legality of taking photos of your ballot varies from state to state https://www.washingtonpost.com/national/ballot-selfies-a-look-at-where-they-are-allowed-or-not/2016/10/23/c7538a66-9913-11e6-b552-b1f85e484086_story.html

  20. Leo Marvin says

    I'll be writing in McMullin on my CA ballot as my side of a swap with a #NeverTrump conservative friend in PA who can't bring himself to vote for Hillary. In addition to the obvious benefit of getting Hillary another swing state vote, I anticipate the ability to say I voted for a Republican opening up years of concern trolling opportunities.

  21. Rick H says

    @IForgetMyName

    but for individual seats at the local level there's still the concern that two similar parties could split the vote and lose to a single opposition party candidate who is at odds with the majority of his constituents.

    That's what we have now, in those rare cases where a third party gets a candidate in. "Split votes" are a consequence of our current all-or-nothing scheme, not an instant runoff system. By assigning added weight to people's second+ choices, the idea is to avoid electing politicians who the majority of voters can't stand.

  22. Richard Smart says

    Aaaand it looks like Trump got Ohio. One imagines Ruth Bader Ginsberg is packing her bags for New Zealand, as that's where she said she'd go. Canada is probably not far enough away. Either way, how many SCOTUS vacancies will Trump fill?

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