Markets in Everything!

An interesting result, for the court case Porter v. Bowen (decision). At a minimum, state laws against political vote "trading," as opposed to outright selling or bartering for goods or services, are now questionable.

Excerpt from decision:

Whatever the wisdom of using vote-swapping agreements to communicate these positions, such 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). The Supreme Court held in Brown v. Hartlage, 456 U.S. 45, 55 (1982), that vote buying may be banned "without trenching on any right of association protected by the First Amendment." Vote swapping, however, is more akin to the candidate's pledge in Brown to take a pay cut if elected, which the Court concluded was constitutionally protected, than to unprotected vote buying. Like the candidate's pledge, vote swapping involves a "promise to confer some ultimate benefit on the voter, qua...citizen[ ] or member of the general public"--i.e., another person's agreement to vote for a particular candidate. Id. at 58-59. And unlike 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. at 55 (emphasis added); cf. Marc Johnandazza, The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Wash. U. L.Q. 143, 221 (2004) ("There can be no...serious assertion, that anyone entered into a vote-swap arrangement for private profit or any other form of enrichment.").

Both the websites' vote-swapping mechanisms and the communication and vote swaps that they enabled were therefore constitutionally protected. At their core, they amounted to efforts by politically engaged people to support their preferred candidates and to avoid 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 voters' tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.

Commentary from Rick Hasen here (he also produced the link for the decision, above)

Some background, from ELB:

Who says the 2000 election is over? Last Friday the Ninth Circuit heard oral argument (audio) in Porter v. McPherson (formerly Porter v. Jones and likely to be retitled Porter v. Bowen). At issue was the decision of then-Callifornia Secretary of State Bill Jones to threaten litigation to shut down websites that allowed individuals in different states to agree to "trade" votes. These sites were set up by people who wanted to make sure votes for Nader did not lead to a Bush victory in 2000. An example of the kind of exchange that the site would facilitate would be a Gore voter voting for Nader in California in exchange for a Nader voter in Florida voting for Gore. This would help give Gore Florida's electoral votes and give Nader his 5% of the popular vote to be entitled to public funding in the next presidential election.

Plaintiffs argue that barring the facilitation of discussions between voters in different states that could lead to exchanges violates the plaintiffs' (and their users) First Amendment rights of free speech and association. (They also have an interesting statutory interpretation argument---that the exchange of political benefits is not "vaulable consideration" under the California statute---and a dormant Commerce Clause argument that I don't really understand.)

The Ninth Circuit heard this case first in 2003 (opinion), which decided the district court erred in abstaining in the case. My earlier coverage is here. The case is now back before a new panel on the merits (Fisher, Clifton and District Court judge Martinez, sitting by designation).

The issue is a fascinating one, about whether the unenforceable exchange of political benefits may be prohibted by the state in the name of preventing vote buying.

(Nod to Chateau)
(And, acknowledgement to Tyler for the title)