Election 2004  
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Trading With the Enemy

Some Naderites and Greens are pushing vote-trading: "Register Green. Vote Kerry. Beat Bush." But is it legal – and will it work?
 
 
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Austin King remembers his favorite bumper-sticker from Election 2000: "Bush and Gore make me want to Ralph." The Green Party activist couldn't stomach lily-livered liberals who warned that, because of the Electoral College, "A vote for Nader is a vote for Bush." And when King learned about NaderTraders.org, a Web site that urged Ralph Nader supporters in swing states like his own Wisconsin to strategically "trade votes" with Gore backers in partisan strongholds like Texas, King responded with his own sign: "Don't Be A Nader Traitor!"

"I thought I was pretty clever," recalls King, who has since been elected to the City Council in Madison. That was then. "I like to think I'm capable of intellectual growth."

President George W. Bush has now transformed King and other leading Green activists into repentant advocates for the pragmatic approach they scorned in 2000: vote trading. This tactic, almost unthinkable before the advent of the Internet, encourages citizens to turn the Electoral College tables on Bush by pairing progressives in swing states like Florida, Michigan, Minnesota, New Hampshire, Ohio, Oregon and Pennsylvania with frustrated Democrats in Republican-red strongholds like Texas, Utah or Wyoming, or Democrats in true-blue states like Massachusetts.

Just like that, two voters cooperate to resolve their common dilemmas and accomplish a common objective: providing an modern antidote to the inequities of the Electoral College, an arcane, archaic system that is historically rooted in the founding fathers' notorious compromise in which slaves were counted as three-fifths of a human being.

Several techies who were independently involved in the provocative, trailblazing 2000 vote-trading movement have now combined brainpower on a Web site called VotePair.org, which features an introductory "splash page" that explains the effort and invites people to "sign up to be notified when our vote pairing service launches on September 20, 2004." Other web sites are also anticipated, including some that tilt Libertarian and some that are ostensibly nonpartisan. The Votepair.org activists, whose various efforts in 2000 were damaged by a constitutionally dubious crackdown by a few Republican state election officials, say they are now prepared for legal combat should it come.

Tricks of the Trade
Abraham Gutmann, a Green Party leader in New Mexico and a co-founder of Greens For Kerry, offers his own experience to explain why the strategy is needed and how it works. In 2000, Gutmann loyally cast his ballot for Nader and felt his anxiety build before a final tally showed Gore squeaked out a 366-vote victory. This time, Gutmann plans to vote for Kerry, having already secured his father-in-law's promise to vote Green in the Democratic stronghold of Hawaii. If Greens like Gutmann and King and operations like VotePair.org can find enough Americans willing to form such alliances across state lines, the result could be – from their point of view – coldly delicious poetic justice: This time, Bush could win the popular vote – and lose the presidency.

And this time, Greens could claim a share of the credit, rather than incur the blame.

Progressive activists have organized two groups that are embracing the so-called "safe state" strategy that emphasizes building the Green Party in partisan states while backing Kerry in swing states. Greens For Kerry, whose slogan is "Register Green. Vote Kerry. Beat Bush," actively promotes the vote-pairing tactic. Greens For Impact, which includes King, has not formally endorsed the strategy, but will probably post links to VotePair.org and similar sites. "We're by no means against it, but we're not taking it on," says GFI chairman David Segal, a city councilman in Providence, Rhode Island.

Green Party nominee David Cobb, unlike Nader in 2000, isn't denouncing the vote-trading idea: "Their strategy is not my strategy. I say register Green and vote Green." But Cobb says he respects the Greens who have staked out vote-pairing and a "safe state" strategy and feels no sense of betrayal. Unlike the Green candidate in 2000, Cobb sees a distinct difference between the major party nominees: "Kerry is bad but Bush is much worse . . . Bush is a genuine threat to the planet."

Nader's campaign – he is on the ballot as an Independent in some states, as the Reform Party candidate in others – threatens to divide the left. Vote-pairing, says Greens for Kerry founder Sarah Newman of San Francisco, could serve as a vehicle for engaging Greens, Naderites, liberal Democrats and independents in a broad progressive coalition whose influence would extend beyond the election. Newman is in touch with VotePair.org activists, who are scattered from Hawaii and California in the West to Florida and Massachusetts on the East.

"The beauty of this is that we learned a lot in 2000, about what to do and what not to do, and what the pitfalls are," says Carnet Williams, a programmer who was involved in the creation of WinWinCampaign in 2000. Williams, who now works for the Nature Conservancy in Hawaii, says the activists, all of whom volunteer their time and talent, are divided into working groups that cover technical applications, political analysis, marketing and media and legal support. Brent Emerson, an Oakland, Calif. programmer, is building systems to defend VotePair against the inevitable hackers and harassment.

Trust is a key to vote pairing, so activists urge prospective traders to exchange email and phone calls to feel assured that pledges would be kept, as many did in 2000. Better yet, they say, pair up with family or friends. The system isn't fool-proof, but advocates also point out that the Electoral College, ironically, provides some built-in protection: A nefarious Bush backer posing as a Green Floridian, say, might persuade a Texas Democrat to vote for Cobb, which could depress Kerry's national popular vote. But the same trickster posing as a Bush-hating Texan would . . . what? Persuade a Florida Green to vote for Kerry?

Down By Law
The 2000 campaign was both a heady experience and a harsh education for the vote-trading advocates. Votepair.org's legal advisors include Jamin Raskin, an American University law professor whose Oct. 29 vote-trading manifesto in the online magazine Slate popularized the idea. When the article appeared, Raskin was unaware that two modest web sites were already up and two automated sites were in the works. Raskin's article inspired more web sites. As traffic zoomed, however, the Los Angeles operators of Voteswap2000 received a letter from California Secretary of State Bill Jones, accusing them of "a criminal activity" and threatening them with imprisonment for violating a state law that prohibited an exchange of vote "for a consideration of value."

The threats worked, prompting shaken activists to shut down two web sites that registered thousands of visitors. Raskin accused Jones, a Republican, of trampling on the First Amendment for partisan advantage. The American Civil Liberties Union (ACLU) took on the case but was unable to secure a restraining order, and the movement limped forward.

To many, Jones's legal theory strained credulity from the start. His aides, explaining the strict nature of California law, insisted that it was illegal for a husband and wife to exchange pledges over votes on a school bond and a sales tax. In the vast majority of states, election officials had no problem with the web sites, while election chiefs in Arizona, Florida, Oregon, Wisconsin and Minnesota followed Jones in publicly expressing various degrees of legal objection, adding to the chill. Only Oregon's Secretary of State, the lone Democrat in the group, instructed local web operators to shut down but reversed himself after a closer study of the practice.

Overlooked in the controversy is that Jones's office had quietly sanctioned the operation of WinWinCampaign, a voter-matching site that was judged to "foster communication" and not match people who were already determined to swap. The ACLU suit has not been resolved, but it is in some ways academic. Raskin, the ACLU and the National Voters Rights Institute express confidence that the practice would be protected as classic political speech.

Terms like "vote trading" or "vote swapping," while vivid, are actually misnomers; pledges are exchanged. Vote pairing, they say, is more properly perceived as an alliance of shared interests, rather than a straight quid pro quo. To outlaw vote pairing, "Congress would have to pass a law making it illegal to change your mind," Raskin says. The secrecy of the ballot ensures political alliance is based on trust and can't be verified. In the ultimate analysis, say proponents, vote pairing is simply a basic political strategy that extends to citizens a practice that is common among legislators across America.

A post-election survey of a dozen trading sites indicated that 36,000 voters had registered, but advocates believe it could have been much greater if not for the controversy and the cool reception from Nader and Gore. While the Greens and Democratic leaders wrung their hands, Raskin says, the Republican-led crackdown did damage that is impossible to calculate. Vote-trading advocates are left to wonder how many of the 98,000 Floridians who cast ballots for Ralph Nader might have opted for Gore if not for the chilling effect of Jones and few others.

The practice is certain to be controversial again, probably breaking along partisan lines. Attorney Marc John Randazza of Florida, a vote-pairing advocate who has authored two articles for legal journals about the 2000 election, says he reached Florida Secretary of State Kathryn Harris, now a member of Congress, by phone a few days before her fame stretched from coast to coast. Harris, he says, told him shortly before Election Day that vote-trading was "absolutely illegal," but another election official ventured that "it could possibly be a violation of the law." With Republicans largely in control of the state's Division of Elections, "I would expect hostile response in Florida." Randazza sounds almost hopeful, spoiling for a fight.

Other questions loom. The jurisdiction appears to rest with the states, but will John Ashcroft's Department of Justice remain on the sidelines like Janet Reno's DOJ did in 2000? California's Jones is out of office and running for Senate, but Minnesota Secretary of State Mary Kiffmeyer, a Republican, bears watching. Raskin found Kiffmeyer's critique in 2000 especially warped, shrill and partisan. Vote trading, Kiffmeyer declared, is "an underhanded scheme that induces voters to cast their vote for a candidate they would not normally support. The results, if successful, would discourage and demoralize voters who follow the rules, only to see their candidates defeated."

Vote traders argue that it is the undemocratic idiocy of the Electoral College that discourages and demoralizes voters. What sort of democratic process enables 537 Bush ballots in Florida to matter more than a half-million Gore votes nationwide?

"My vote is null"
The Greens' new attitude toward vote-trading represents a dramatic change from 2000, when the grass-roots phenomenon proliferated without the endorsement of any organized group – no Green offshoots, no Sierra Club, no MoveOn.org, no Rock the Vote, no unionists or gay rights group. Beyond the web sites themselves, the activism in 2000 tended to be personal. NaderTrader.org founder Jeff Cardille, the movement's unofficial historian, learned about some Green-leaning congregants in a Unitarian Universalist church in swingin' Pennsylvania who collectively decided to find partners, and the retired college professors in Wyoming who spread the word among liberal friends and teamed up with Naderites in Wisconsin.

Votepair.org activists have registered several domain names, most of which now drive traffic to Votepair.org. One trial-run site recorded a comment from Kenneth Silver of Rhode Island, a solidly Democratic state, trolling for a trading partner. Reached by email, Silver said he had voted for Nader in 2000 in a pact with an Oregon voter. (Gore won Oregon by only 6,765 votes.)

Silver explained a more recent political evolution: "I was always a liberal, but never an activist. The Iraq war changed that . . ..

"I will do a vote swap again this year. Hopefully I'll find a like-minded Libertarian in Ohio. I am doing this on faith. Of course I might be made a chump of by some Republican or even a Nader supporter, but that's the risk you take.

"Politicians drill the message that every vote counts. I wish it were true. The four electoral votes Rhode Island has to offer are sewn up by Kerry. My vote is null. I'm trying to make it count for something."