By ann summers
There are some thought experiments that arise each election cycle and the regularity of the question does raise other useful questions that would take far too long to resolve. For example, the issue of why an Electoral College persists even as majoritarian popular votes in a national General Election are less controversial in the main.
To be clear, I try to respect democratic reciprocity, but it seems also clear in an age of $7,000 Wrigley Field tickets for the World Series, that rather than discussing the getting rid of the electoral college (towards more direct democracy), one might be better served in subverting it.
- I have in my hand a California absentee ballot. I might be willing to swap votes before I decide to finally send it in next week to arrive in time to be counted, but…
- I now probably won’t, simply because I don’t know any one I trust in any of the swing states who are willing to swap votes… but there are certainly other and better reasons.
That being said, it is a useful thought experiment if only to consider both the problem of commodifying one’s franchise and the possibility that democracy might be better served.
Some contingencies and basic premises for an exchange of one’s political vote in the 2016 General Election namely: Vote Trading, or the transfer/change of one vote by one individual with another individual as a single exchange.
Am I willing to vote for Stein/Johnson (only) in exchange for a Swing-State voter’s Hillary absentee ballot vote? (No, because it’s that important)
- can one bear voting for Trump ever (not me, certainly; not because my choice in that case would not be fungible, but because no one has enough money or isn’t free of racism, sexism, classism to buy my vote.
- can one bear voting for Stein/Johnson (it is why I vote Democratic, only because their respective party ideologies (Green/LP) are inconsistent with their candidates, as usual)
- there might be very few Stein/Johnson voters left to make such a networked exchange after all the -Bro/-bot haterism that has fostered some historic splintering (caucus99percent)
- there might be reasons of “faithlessness”: irritating pro-HRC hegemonic behavior (darn your (centrist) disloyalty!); or irritating anti-HRC dead-enderism (darn your (progressive) disloyalty!)
Transferring/exchanging votes: would it make any difference given the polling and the deadlines… would our votes be authenticated using notaries to ensure trust (but verify) but even with such nominal costs, is it still a kind of poll tax… is there an opportunity cost and would it be illegal, and would it all be solved by a national adoption of instant-runoff voting
In this election, it would allow, for example, a Jill Stein supporter in a swing state like Ohio to vote for Hillary Clinton in exchange for a Clinton supporter in a safe state like California to agree to vote for Jill Stein.
The supposed benefit of this trade is that the Ohio voter helps Clinton get elected in a place where a vote for a third-party candidate can act as a spoiler, but Stein’s overall popular vote totals would be the same, potentially entitling Stein to some public financing for her campaign and showing the candidate’s popularity.
The history of this is of course, instructive.
Fortunately, there’s a precedent, and a solution: vote trading, which was first attempted during the 2000 election and which, thanks to today’s more robust Internet, could make all the difference in a tight race.
Sixteen years ago, the concern was that votes for the left-leaning third-party candidate, Ralph Nader, could siphon off critical support for Al Gore in swing states like Florida. Gore supporters begged Naderites not to “throw away” their vote — an insinuation that Nader voters found offensive.
As the election neared, though, “Nader Trader” websites emerged. The idea was simple: A Nader supporter in Florida, where every vote mattered, could promise to vote for Mr. Gore — and, in exchange, a Gore supporter in a Democratic stronghold like Washington, D.C., would promise to vote for Mr. Nader.
First, consider the size of the #NeverTrump Republican vote. In 2012 Ohio Republicans went 94 percent for Mitt Romney; President Obama received 5 percent of their votes and 1 percent went to “other.” This year, because of Mr. Trump’s candidacy, the percentage of Republicans who have indicated they are voting for Mrs. Clinton or Mr. Johnson or are unsure is 18.2 percent.
The problem is that in many close states, the number of Republicans who say they will vote for Mr. Johnson or stay at home is larger than the difference in support for Mr. Trump and Mrs. Clinton. Again, in Ohio, if the election were held today, polls predict that Mrs. Clinton would win 6.1 percent of the Republican vote and Mr. Johnson would win 6.2 percent (the additional 5.9 percent is undecided). This could decide the election: The latest Quinnipiac University poll in Ohio has Mr. Trump up by a point, 46 to 45.
And what is the current state of swing state votes.
But the distortions of the Electoral College can still be surprising. According to Upshot estimates as well as those of FiveThirtyEight, Nevada and New Hampshire, small in population and politically divided, are the top two states in a measure of voting power per person. (Another effect of the Electoral College is that residents of smaller states have more voting power on average than those of larger ones.)…
Q. Vote buying is obviously illegal. But what about gray areas?
1) Let’s say you’re a Californian and you’re feeling left out of the election. You have a nephew in Florida who is apolitical and a big sports fan. You tell him that if he votes for Donald J. Trump, you’ll take him to a Lakers game and a nice dinner the next time he visits Los Angeles. (It’s understood that you’ll pay for the tickets and dinner because that’s what you normally do on such occasions.) Would that be considered against the law? If so, and if it somehow ever came to light, what might the penalty be?
2) Or another example. You have an 18-year-old niece in Ohio; she’s undecided and unsure if she’ll vote. For her birthday, you give her $100 instead of the usual $50, give her a wink in front of her family and say, “I’m not suggesting it’s a bribe, but if you vote for Hillary Clinton, I certainly won’t mind.” (Everyone chuckles.)
A. These questions are similar to those that commonly come up in bribery prosecutions. When is there enough evidence of a deal (a “quid pro quo” exchange) to show that the transaction is illegal.
1) Certainly if I say to a stranger, if you vote for Trump I will give you Laker tickets and take you to dinner — that would be a bribe. The fact that it is an uncle and nephew with a pre-existing relationship may make proving the deal harder, especially if there is a history of the uncle giving gifts to the nephew. Under a federal statute (52 U.S.C. s 10307(c)), “Whoever knowingly or willfully … pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years.”
2) Like the first example, it turns on intent, and the familial relationship may make it harder to prove it is illegal vote buying. But if the aunt says to the niece, “I will give you $50 to vote for Hillary Clinton,” that could well be found to cross the line…
But the larger point is that people are looking for ways around the fact that we have this odd system, where we make it really easy for third-party candidates to get on the ballot in most places, but almost impossible for them to win. A much more rational solution to this problem would be to adopt instant runoff voting [in which voters rank candidates in order of preference] so that a vote for Stein could go to Clinton (or for Gary Johnson could go to Trump) if that’s a voter’s second choice.
Would it ever work?
“California made that claim after 2000, and the 9th Circuit held that these were not binding promises, and they were a form of First Amendment protected speech. Not clear if other courts would agree should this arise again,” election law Professor Rick Hasen said in his blog.
In that decision, the United States Court of Appeals for the Ninth Circuit ruled:
The websites’ vote-swapping mechanisms as well as the communication and vote swaps they enabled were constitutionally protected. Although California certainly has valid interests in preventing election fraud and corruption, and perhaps in avoiding the subversion of the Electoral College, these interests did not justify the complete disabling of the vote-swapping mechanisms.
Some have claimed that vote swapping constitutes illegal vote buying under federal law or state statutes. The California Secretary of State went after a website that offered vote swapping in the 2000 election, claiming that it violated state anti-vote buying prohibitions. The case, Porter v. Bowen, went to the United States Court of Appeals for the Ninth Circuit, which held that the activity was protected by the First Amendment and did not raise the danger of an exchange of money for votes. The state tried to take it to the full Ninth Circuit, which refused to take the case.
Three judges, however, issued a dissenting statement suggesting that vote swapping is illegal vote buying not protected by the First Amendment, and it is quite possible that another court would agree with the dissenters should the issue arise again.
The below example marginalizes voting not unlike a unverified Trump-trade (like could one ever trust a Trump voter), and their attempt to co-opt indecisive voters in the GOP direction have been trying to create a bizarre coalition dichotomy of “principled” progressives and “conscientious” conservatives:
What is a Vote Pact?
A Vote Pact is a way to support real alternatives without being weakened by a “spoiler” attack. VotePact is not vote swapping — it is small-d democracy.
By forming a VotePact, a disenchanted Democrat and a disenchanted Republican team up to vote for their preferred candidates, breaking out of their partisan boxes.