Four years ago today, I wrote a piece for Slate called "Nader's Traders: How To Save Al Gore's Bacon by Trading Votes on the Internet." The article suggested Internet "vote-pairing" coalitions between Nader sympathizers in swing states like Florida, Michigan, Ohio, and Wisconsin and Gore sympathizers in safe Republican states like Texas, Alabama, Utah, and Mississippi. After meeting each other on Internet vote-pair sites, the Nader sympathizers would announce their decision to vote for Gore, the Gore sympathizers for Nader, in a nationwide grass-roots effort to advance multiple common objectives. Gore would win the popular votes he needed in swing states to reach 270 in the Electoral College while Nader would continue his climb to 5 percent in the national popular vote, his campaign's unofficial goal in order to qualify the Green Party for federal financing. Rather than savaging each other, progressive Democrats and Greens could ally to stop Bush.
Though Gore and Nader kept their distance, the vote-pairing idea rocketed through the Internet, with nearly a dozen Web sites going up. In days, there were an extraordinary 2.3 million visits to the sites. Jeff Cardille's flourishing NaderTrader.org experienced 650,000 hits alone. In an election where Florida was decided by 537 votes (for Bush) and New Mexico by 366 (for Gore), the 36,000 voters who actually paired up online—and the tens of thousands of others who participated off-line with friends and family—played a serious role in the election. Their instinct proved to be dead-on: In the popular vote, Gore and Nader together captured more than 3 million votes more than Bush did in 2000. The problem obviously was not the number of progressive and moderate voters but their location.
The young, computer-savvy veterans of 2000 have joined forces again and are reviving vote-pairing for the 2004 presidential election. Although Nader's base is obviously much smaller now, with most of his progressive supporters long since having gone home to the Democratic Party, even a few thousand votes in the swing states could turn the election for Kerry. VotePair.org is trying to find matches for the thousands of people in safe states who would gladly vote for Nader to assure that every progressive person in a swing-state voted for Kerry. The organizers, who believe the full force of vote-pairing was blunted by Republican state officials in 2000, have assembled a team of pro bono legal advisers (including me) to lay out the powerful First Amendment case for vote-pairing and stop any efforts to shut down the sites.
In 2000, Republican attacks on vote-pairing began just one week after Slate published my article and a week before the election. California's ambitious Republican Secretary of State, Bill Jones, struck the first official blow. Describing vote-pairing as "criminal activity in the State of California," Jones sent prosecution threat letters to Jim Cody and Ted Johnson, the youthful creators of voteswap.com, demanding that they close their site down immediately. Jones declared that each vote-pairing agreement on voteswap.com was a felony carrying "a maximum penalty of three years in state prison in California for each violation." Having allegedly "brokered" thousands of these crimes, Cody and Johnson were facing multiple life sentences in prison. They closed their site down, and other Web site managers, spooked by the threats and headlines, followed suit, cutting off the spectacular growth of vote-pairing and perhaps altering the election outcome.
On its face, the Jones cease-and-desist letter was pure bluster. It referred to sections 18521 and 18522 of the California Elections Code, which criminalize vote-buying and vote-selling. But, of course, neither vote-buying nor vote-selling takes place in vote-pairing. No money changes hands. Nothing of material value is exchanged. A vote cannot bea thing of "material" or "pecuniary" value under the vote-buying statutes: The statutes themselves say that clearly. Indeed, the whole interaction in a vote-pair consists of pure political expression in the form of mutual persuasion and political coalition. And, in the final analysis, of course, there is nothing contractually binding about any of it since all participants are on the honor system and vote according to their own political values and considerations.
Even if they wanted to (and none ever has), state legislatures could not ban vote-pairing in the future. That would be like banning candidate promises, political endorsements, and bipartisan coalitions. The First Amendment protects the right of citizens to talk about their votes across state and party lines, to change their minds, to change other people's minds, to publicly endorse and vote for whomever they want (including the lesser of two evils or their second- or third-choice candidate), and to form strategic voting coalitions. Political compromise, slate-making, coalition-formation, legislative logrolling, and vote-trading are the very essence of democratic politics.
Still, Jones' strike at the new politics of the Internet apparently impressed some fellow Republican secretaries of state, five of whom joined his transparently partisan attempt to break up the coalition. Florida's not-yet-notorious Katherine Harris described vote-pairing as "absolutely illegal." The day after California's Jones threatened Cody and Johnson, Minnesota Secretary of State Mary Kiffmeyer sent out a threat letter of her own, escalating the rhetoric to describe vote-pairing as nothing less than "the ultimate in voter fraud." The Republican Kiffmeyer wrote, in the most lucid, if unwitting, demonstration of the fallacy at the heart of these attacks:
It proposes to change the outcome of the election through an underhanded scheme that induces voters to cast their vote for a candidate they would not normally support. The results, if successful, would discourage and demoralize voters who follow the rules, only to see their candidates defeated. [emphasis added]
Secretary Kiffmeyer did not seem to understand that political campaigns routinely seek to "change the outcome of the election" by inducing voters, through political persuasion and dialogue, "to cast their vote for a candidate they would not normally support." Thus, the Republicans invited Democratic Sen. Zell Miller to give the keynote address at their convention with the goal of converting Democrats. The Democrats had Ronald Reagan Jr. doing the reverse. Of course if such tactics are successful, they may leave supporters of losing candidates "discouraged." This is called democracy.
In any event, when Bill Jones left office to run for governor (unsuccessfully) and now for U.S. Senate, his extreme position unraveled. The ACLU of Southern California (assisted by professors Laurence Tribe, Alan Dershowitz, and me) brought a civil liberties lawsuit arguing that these prosecution threats against political association in the middle of a presidential campaign chilled and violated First Amendment rights. We have been winning in the 9th Circuit and now await a district court summary judgment ruling. Meantime, the current Secretary of State of California, Democrat Kevin Shelley, has released a letter stating that vote-pairing is not illegal in California, thus removing any threat of official attacks on vote-pairing there.