Let’s say you live in a swing state and want Green Party candidate Jill Stein for president. But you really, really don’t want Donald Trump to win. Vote swapping might be your answer.
A Vox article Thursday described the phenomenon, in which battleground-state supporters of third-party candidates are making online deals with Hillary Clinton voters. The third-partiers will cast votes for Clinton win where it counts, in exchange for someone in a safe state for the Democrat casting a ballot for Stein or another third-party candidate.
It’s a win for both sides… except that the term “vote swapping” just sounds so legally questionable. It’s an important consideration, because so much trading takes place in public forums, like Facebook pages.
But don’t worry, says Joshua Douglas, associate professor of law at the University of Kentucky College of Law. At least one court says the practice is legal.
“The basic reason is that there is no exchange of anything of value,” Douglas told TheWrap. “The second is that there is no way to prove that both people went through with it.”
As some Trump supporters have noted, there’s nothing preventing them from trading votes too — perhaps with supporters of Libertarian candidate Gary Johnson.
How about @realDonaldTrump supporters
doing this too???#VoteSwapping https://t.co/kx2Wr2IEVE— RockyMtnMaverick ☘ (@rkymtnmvrk) November 4, 2016
The practice first popped up during the Bush v. Gore 2000 presidential election, when many Al Gore voters in solidly Republican states wanted to find a way to make their votes to count. So they traded their votes with Ralph Nader supporters in swing states.
Vote-trading websites like VoteSwap2000.com, NaderTrader.com and TradeVotes.com, began to pop up as tens of thousands of voters looked into the concept of trading their votes.
It was unclear at the time how legal the practice was and several of the sites came down. One of them, VoteSwap2000.com, then filed a lawsuit. In that case, Porter v. Bowen, the Ninth Circuit Court of Appeals decided that vote trading was “clearly protected by the First Amendment.”
“The Ninth Circuit Court’s decision demonstrates that at least one court ruled that communication about how you will vote is a protected under First Amendment activity,” Douglas said. “And does not amount to vote buying.”
Douglas also said that as far as he knows, no one has been prosecuted for vote trading.
So, if you feel like swapping your vote, go ahead. But you might want to do a better job than anti-Bush voters did in 2000. Al Gore narrowly lost in Florida after a long recount, and some Democrats will never forgive Floridians who cast ballots for Nader.