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The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions Marc John Randazza

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The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions Marc John Randazza Washington University Law Review Volume 82 | Issue 1 2004 The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions Marc John Randazza Follow this and additional works at: http://openscholarship.wustl.edu/law_lawreview Part of the Constitutional Law Commons, Election Law Commons, First Amendment Commons, Law and Politics Commons, and the President/Executive Department Commons Recommended Citation Marc John Randazza, The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Wash. U. L. Q. 143 (2004). Available at: http://openscholarship.wustl.edu/law_lawreview/vol82/iss1/4 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. THE OTHER ELECTION CONTROVERSY OF Y2K: CORE FIRST AMENDMENT VALUES AND HIGH-TECH POLITICAL COALITIONS MARC JOHN RANDAZZA, ESQ.∗ TABLE OF CONTENTS I. INTRODUCTION .................................................................................... 145 A. The Issue.................................................................................. 145 B. Research Questions................................................................. 153 C. Research Methodology............................................................ 154 D. Part Outline............................................................................. 155 E. Literature Review .................................................................... 155 II. DUVERGER’S LAW, POLITICAL MOVEMENTS, AND THE CHILLING EFFECT ............................................................................................ 161 A. Strategic Voting and Duverger’s Law..................................... 161 B. Political Movements and the Internet ..................................... 164 1. First-Level Online Political Organization ...................... 165 2. Second-Level Online Political Organization................... 166 C. The Electoral College.............................................................. 167 D. The Chilling Effect .................................................................. 168 1. What is the Chilling Effect?............................................. 168 2. Was There a Chilling Effect? .......................................... 170 3. What Were the Electoral Consequences of the Chilling Effect?.............................................................................. 171 III. VOTE-PAIRING AND STATE LAW ...................................................... 173 A. Procedural History and Kelleher’s Abstention ....................... 174 B. California ................................................................................ 176 1. California Procedure....................................................... 176 2. California Constitutional Law......................................... 176 3. California Election Law .................................................. 177 C. Oregon..................................................................................... 179 1. Oregon Election Law....................................................... 180 2. Oregon Constitutional Analysis ...................................... 182 D. Florida..................................................................................... 184 ∗ The author is a First Amendment attorney based in Fort Myers, Florida. J.D. (2000), Georgetown University Law Center; M.A. (Mass Communication) (2003), University of Florida; B.A. (Journalism) (1994), University of Massachusetts. The author thanks Dr. William F. Chamberlin for his guidance, friendship, and patience. 143 Washington University Open Scholarship p143 Randazza book pages.doc4/12/2004 144 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 82:143 E. Minnesota................................................................................ 190 1. Minnesota Election Law.................................................. 190 2. Minnesota Constitutional Law ........................................ 194 F. Arizona .................................................................................... 194 1. Arizona Election Law ...................................................... 195 2. Arizona Constitutional Law............................................. 197 3. Arizona Conclusion ......................................................... 199 G. Wisconsin ................................................................................ 199 H. States That Explicitly Permitted Online Vote-Pairing ............ 201 1. Maine............................................................................... 201 2. Nebraska.......................................................................... 203 I. General State Conclusions...................................................... 204 IV. FEDERAL ANALYSIS.......................................................................... 205 A. Federal Election Law.............................................................. 205 1. Matching Funds Law....................................................... 205 2. Federal Election Corruption Law—42 U.S.C. § 1973i(c) ........................................................................ 207 B. Federal Constitutional Law .................................................... 211 1. Content-Based Speech Regulation................................... 212 2. Freedom of Association................................................... 216 C. Federal Constitutional Conclusions........................................ 219 1. Regulation of Vote-Swap Sites Requires Strict Scrutiny . 219 2. Actions by the Offending Secretaries of State Were Not Content-Neutral............................................................... 220 3. Compelling Governmental Interests................................ 221 a. Compelling Interest: The Prevention of Corruption ............................................................... 221 b. Compelling Interest? Protecting the Duopoly......... 222 4. The Offending Secretaries of States’ Actions Were Not the Least Restrictive Method of Serving the Governmental Interest..................................................... 224 V. ETHICAL ANALYSIS............................................................................ 225 A. Introduction............................................................................. 225 B. The Issue is Rampant With Bias.............................................. 226 C. Vote-Pairing in Other Contexts............................................... 228 1. Vote-Pairing Among Olympic Judges ............................. 228 2. Vote-Pairing and the Judiciary ....................................... 229 3. Vote-Pairing in the Political Arena................................. 232 D. Ethical Conclusion .................................................................. 235 http://openscholarship.wustl.edu/law_lawreview/vol82/iss1/4 p143 Randazza book pages.doc4/12/2004 2004] HIGH-TECH POLITICS & THE FIRST AMENDMENT 145 VI. CONCLUSIONS ........................................................................... 235 A. Legal Conclusion..................................................................... 236 B. Ethical Conclusion .................................................................. 238 C. Conclusion............................................................................... 241 ABSTRACT As the 2000 campaign reached its climax, some renegade supporters of Green Party candidate Ralph Nader countered critics’ charges that they were “handing the election to Bush” by creating websites encouraging vote-swapping. The theory of this practice was: A Nader supporter in a hotly contested state would agree to vote for Al Gore if a Gore supporter in an uncontested state would vote for Ralph Nader. The object was to help deliver five percent of the popular vote to the Green Party (so that the Greens would receive federal matching funds for the 2004 presidential election) while simultaneously working to prevent a George W. Bush presidency. With the election less than a week away, and the poll margins closer than any election in recent history, several state election officials acted to snuff out the online vote-swapping movement by threatening vote-swap site operators with fines and/or imprisonment. The chilling effect brought about by the letters from state regulators may have tipped the scales in the 2000 campaign, even though no one knew whether prohibiting vote- swapping was constitutional. This study introduces the reader to the concept and practice of vote- swapping. It examines the chilling effect of the threats of prosecution issued during the 2000 election and these effects’ possible electoral consequences. This study analyzes online vote-swapping under various state laws and state constitutions and extends the analysis to encompass federal election law and federal constitutional law. Finally, this study examines the ethics of vote-swapping and concludes that the practice is legal under most state election laws, protected under most state constitutions, protected by the federal Constitution, and an ethical use of personal voting power. I. INTRODUCTION A. The Issue The 2000 presidential election will be remembered as one full of irregularities and controversy. In fact, the 2000 presidential election Washington University Open Scholarship
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