Why it's completely legal to trade votes across state lines

For many Americans living in solidly blue and red states, helping elect their preferred presidential candidate simply isn’t possible.

Most of the election attention goes to swing states, where political ads and rallies run rampant in efforts to persuade the people who really decide the nation’s next leader. But that could change with something called vote trading.

You can actually connect online with someone living in another state and essentially “trade” votes in a way that benefits both of you. There’s a website currently connecting voters to do just this — all as a way to stop the election of Donald Trump. And it’s completely legal.

TrumpTraders connects people online based on their presidential candidate of choice and what state they live in. This means a California Democrat can trade their Clinton vote with a third party voter in Florida, for instance, giving Clinton an edge in that battleground state while a third-party candidate gets another vote in California. And by connecting third-party supporters with Democratic voters, everyone can work together to prevent Trump from becoming president.

TrumpTraders is trying to give more voters a chance for their voices to be heard through vote-swapping across states.

TrumpTraders is trying to give more voters a chance for their voices to be heard through vote-swapping across states.

Such a strategy, on the surface, can feel strange and maybe even undemocratic. After all, what about the voices of Trump supporters? Does this threaten the virtues of electoral democracy as we know them?

The simple answer is “no,” according to the decision made in the 2007 California appeals court case of Porter v. Bowen.

The court decided that vote-swapping websites during the 2000 presidential election were totally legal, and they were protected by the First Amendment.

Websites like vote-swap2000.com, nadertrader.org and voteexchange2000.com connected Green Party and Democratic Party voters during 2000 presidential election. They were trading votes for Ralph Nader and Al Gore in a broader effort to both elect Gore and secure federal funds for the Green Party’s campaign four years later. That plan failed when former Republican California Secretary of State Bill Jones shut down the vote-swapping websites just a week before the election.

The National Voting Rights Institute and American Civil Liberties Union of Southern California would later bring a case against Jones. Seven years later, the court ruled that Jones’ actions were unconstitutional.

“His actions severely burdened activity protected by the First Amendment,” the court explained in the case of Porter v. Bowen.

In fact, the types of discussions happening through vote-swapping websites were prime examples of protected speech, the court said.

“This kind of communication is clearly protected by the First Amendment.”

“This kind of communication is clearly protected by the First Amendment,” the court wrote, citing the words of the 1966 case of Mills v. Alabama: “[T]here is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs… [including] discussions of candidates.”

One of the two people who started TrumpTraders is John Stubbs, a former official for the Office of the U.S. Trade Representative during the George W. Bush administration. 

He’s a loyal Republican who’s voting for Clinton mostly just because she’s not Trump. He helped start a group called R4C16, or Republicans for Clinton, encouraging other fellow Republicans to join the vote-trading effort to elect Clinton as basically a lesser evil.

He and fellow organizer and trade official Ricardo Reyes wrote about their efforts in a New York Times op-ed called “Anti-Trump Republicans: Don’t Waste Your Vote. Trade It.”

Stubbs said TrumpTraders can actually be offering a greater level of democracy than what currently exists. With the Electoral College indirectly but inevitably granting greater weight to votes in certain states, the current system is far from perfect, he said. 

“The entire democratic process is absurd,” he told Mashable. “I didn’t create that corrupt system. I didn’t create that imbalance.” 

By swapping votes in a strategic way, democracy is actually functioning better as more voices are being better heard, he said. Right now, many Americans simply don’t have the means to make their vote really count, and in some cases, to stop the election of Trump. But TrumpTraders changes that, Stubbs said.

“The entire democratic process is absurd.”

“Well now they can do something about it,” he said. “It’s the same president for every state … We have to talk to each other. We shouldn’t leave it up to the super PACs.”

However, the actual process by which vote-swapping happens is a crucial factor in its legality. One voter cannot cast the ballot of another person. Rather, those two people can only discuss their votes and promise to cast their own ballots in each other’s favor.

In this way, vote-swapping is actually a very traditional functioning of democracy, according to Jamin Raskin, a law professor who has written about vote trading in his book, Overruling Democracy: The Supreme Court v. The American People.

“This is how politics work — people form coalitions to advance future goals,” Raskin told Mashable.

Also democratic is the fact that voters have to trust that their vote-swapping buddy will stay true their word on Election Day, said Raskin, who’s now running for Congress in Maryland.

“A lot of trust and faith is the glue of democracy,” he said, adding that vote trading is also legal because it doesn’t involve money or bribery. 

That’s part of the reason Jones failed back in 2000 to convince the court that vote trading was fraudulent — an attempt Raskin called calculated and “corrupt.”

“There was a concerted governmental attack on political free expression and activity,” he told Mashable about Jones shutting down vote-swapping websites. “It was a naked assault on political free speech.”

While the vote-trading websites back in 2000 didn’t necessarily “win,” they introduced a new precedent, as the court said they were the first instances of internet vote trading.

And given the stakes in the year’s election, they won’t be the last.

“The Nader Trader websites were not a big failure,” Stubbs said. “They were a necessary beginning.”

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