An old election issue is new again – Vote Swapping

An old election issue is new again – Vote Swapping


In the 2016 presidential race, there is more third-party support than at any other time in recent history. Gary Johnson’s candidacy provides an alternative to the two major party candidates. The Greens’ Jill Stein offers a progressive alternative to the Democrats’ decidedly un-progressive move to the right.

The fact that most Americans would prefer neither Clinton nor Trump is a well known fact. However, many are voting for “the lesser of two evils.” But, many would also like to see the Green or Libertarian parties grow into real alternatives to the Republicans and the Democrats. What are they to do?

The 2000 presidential election offers little comfort to anyone these days, but an issue that arose in that election could be both effective, and much easier, in 2016.

In the 2000 election, left-leaning voters wanted to support the Green Party. If Ralph Nader’s Greens got 5% of the popular vote, the Greens would be entitled to federal matching campaign funds in 2004. Greens and many Democrats saw that as a progressive win. However, they also wished for the Democratic nominee, Al Gore, to win the election. Confronted with the dilemma of voting their conscience or voting strategically, a group of them came up with a plan: Vote Swapping. In states where the electoral votes were a foregone conclusion due to Democratic or Republican party dominance, would-be Gore voters would pair with Green voters in swing states. The “safe state” voters would vote for Nader, while the swing state voters would pledge to vote for Gore.

Almost immediately, some state election officials cried foul. However, it mostly fell on partisan lines. Some even threatened prosecution.

Were vote-swapping sites truly corrupting the electoral process? Does this conduct fall within the boundaries of political speech and freedom of assembly, subject to the highest level of First Amendment protection? Or is it the same as buying a vote and contravening the one-citizen, one-vote ideal? Did the election officials step on the most precious of American rights and alter history in the process?

In the wake of this controversy, Marc Randazza produced two law review articles on the subject. The Constitutionality of Online Vote Swapping, in the Loyola Law Review, and four years later, he refined his research in the Washington University Law Quarterly in The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions. The latter was cited in the only court decision to declare online vote swapping to be protected — Porter v. Bowen.

In the 2016 election, again the decision will come down to a few key states. However, there is greater third party support than ever before. With rapid social media communications in place, online coalitions of third party voters could be a successful strategy. However, as in 2000, it is likely that partisan election officials will at least try and discourage the practice. The research in these two articles should show that this practice is constitutionally protected.

Read more and download the paper

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