Ninth Circuit Rules That Vote-Swapping Websites Cannot Be Prosecuted Under Vote-Buying Statutes

In a decision that could have significant implications for the upcoming 2008 presidential election, the U.S. Court of Appeals for the Ninth Circuit held that California’s former Secretary of State Bill Jones improperly threatened criminal prosecution against vote-swapping websites operating during the Bush-Gore 2000 presidential election. Porter v. Bowen, Case No. 06-55517 (9^th Cir., Aug. 6, 2007) (Fisher, J.). The Ninth Circuit explained, "whether or not one agrees with these voters’ tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment."

In the last weeks of the 2000 presidential campaign, several websites launched that allowed third-party supporters in swing states (where the projected outcome was uncertain) to strategize with major-party voters in safe states (where the projected outcome was reasonably certain), to avoid handing the election to their least-preferred candidate.