Vote Swapping and Free Speech: Voice, Politics, and Choice

Article excerpt

I. Introduction

The advent of the Internet has created a world of new opportunities for commerce and communication. The Internet is virtually revolutionizing the way people live. Today e-mail is more common than paper mail, a buyer can shop online without going to a store, a person can make friends without ever leaving home, and the best libraries in the world are only a mouse-click away.

Despite these new opportunities, the Internet raises unique and challenging legal problems. These problems pervade Internet access and use, ranging from jurisdictional disputes involving choice of law to free speech concerns. There is no area of Internet activity that is unaffected. One new area of concern is Internet political speech organized to promote vote trading.

During the 2000 presidential election, the Internet was used in new and inventive ways. The 2000 election was the first time that candidates for President fully utilized the Internet. The websites included general information, organizational information, candidate messages tailored to the cookie profile of the accessing computer, and campaign fundraising activity.1 However, the use of the Internet was not limited to the two major parties. The Nader presidential campaign made use of the Internet, as did other smaller campaigns.

Not only was the 2000 election a website-savvy election, but it was also one of the closest in United States history. Early on, both parties realized that the election would be a close race. A chief concern of the Gore campaign was that Nader's efforts to garner votes would take away liberal Democratic supporters in a close race. Gore had seen this scenario play out in 1992 when Bill Clinton was elected President with only forty-three percent of the vote.2 In the 1992 election, third-party candidate Ross Perot cost Republican George Bush the election by securing votes that would otherwise have been part of the Republican base. Gore, realizing that this scenario was playing itself out in liberal circles, sought to limit Nader's impact.

Late in the summer of 2000, many liberal Democrats appeared to support Nader. In swing states a vote for Nader could have been the deciding factor in Gore's loss. Many Nader supporters, however, would have rather seen Gore elected President than Bush. Voting for Gore, though, meant that Nader would not receive enough support to win the five percent of the popular vote necessary to receive federal funding in the next election. Voting for Nader would likely cost Gore the election. At this time, University of Wisconsin at Madison doctoral candidate Jeff Cardille posted the idea of vote swapping on the Web.3 His idea was simple: Gore voters in secure Bush states would trade their votes with Nader voters in swing states. By doing so, two goals could be met: Al Gore would become President and Ralph Nader would get the five percent of the national vote needed for matching federal funds in the next election.

Mr. Cardille did not set up a site dedicated to vote swapping,4 but his plan spread quickly in cyberspace. Soon after he posted the idea, many sites sprang up that allowed voters to swap their votes. It looked as if Gore might prevail despite the presence of a third-party candidate, and he owed it all to the Internet. If former President Bush had developed such a way to combat losing voters to Ross Perot's third-party campaign, Al Gore may have never been Vice President.

The use of the Internet offered a solution to the third-party problem by connecting voters with similar political interests. Voters were no longer isolated in their states; the Internet enabled voters to connect across state lines. Voters were now finding a way to manipulate their votes from state to state, thereby influencing the outcome of the election. During the 2000 presidential elections, the State of California attempted to shut down vote swapping websites. The state's action raises interesting legal questions concerning the exercise of political expression. …