The U.S. Court of Appeals for the Ninth Circuit denied a petition for rehearing en banc in a case involving the tension between free speech and vote-swapping websites. Porter v. Bowen, Case No. 06-55517 (9th Cir., March 13, 2008) (en banc) (Kleinfeld, J., OScannlain, J.; Bea, J., dissenting).
In August 2007, the Ninth Circuit held that Californias former secretary of state improperly threatened criminal prosecution against two vote-swapping websites operating during the Bush-Gore 2000 presidential election. In its holding, the Ninth Circuit found that the websites vote-swapping mechanisms, along with the communication and vote swaps they enabled, were constitutionally protected speech. Further, the Court determined that the secretary of states threatened criminal prosecution was an unlawful burden because it was not sufficiently tailored to the advancement of the state of Californias legitimate interests.
When the Court was presented with a petition for rehearing en banc, the matter failed to receive a majority of the votes of the non-recused active judges. Judge Kleinfeld, joined by Judge OScannlain and Bea dissented from the denial. "This case is about whether the First Amendment protects from prosecution people who buy votes," Judge Kleinfeld stated, "Instead of cash, or beer and cigars, the buyers offered promises." Judge Kleinfeld explained that he dissented from the panel opinion because vote buying is not protected by the First Amendment and vote swap agreements constitute vote buying. Thus, he reasoned, vote-swapping agreements are not protected by the First Amendment.
Judge Kleinfeld found that the websites intentions to swap votes in efforts to avoid the election of the voters least-preferred candidate had no merit. "Our Constitution requires that electoral votes be cast state-by-state, not that the President be elected by plurality or majority of the nationwide popular vote," Judge Kleinfeld stated, "Whether the electoral college and winner-take-all casting of electoral votes is a good idea has no bearing on the law. Article II, section 1, and the Twelfth Amendment are the Constitution we have. State-by-state voting is the system for which they provide." As such, Judge Kleinfeld determined, "[t]he First Amendment does not prevent state prosecution of those who subvert it by making arrangements effectively to cast votes in other states."
Practice Note: The Courts rejection of the petition will likely encourage the creation of many similar websites during the 2008 presidential election.
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