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).
Marc Randazza is the national president of the First Amendment Lawyers Association
