Ballot Busters

Scott Duke Harris last wrote for the magazine about Oakland, the ex-con capital of California.

The electoral college. It's like the weather. Everybody complains, nobody does anything about it.

In next year's presidential race, Americans will have their chance. As surely as Gov. Schwarzenegger will address the Republican National Convention, untold thousands of citizens will organize over the Internet to manipulate the Electoral College. Revisiting a tactic that first surfaced late in the 2000 presidential campaign, voters will form bipartisan alliances across state lines, "trading votes" between major party candidates and third-party candidates, hoping to decide whether swing states will wind up Republican or Democrat.

Voters who do so will be accused of acting unethically, perhaps illegally, to short-circuit the election. Their defenders will say the practice is the kind of horse-trading common in American democracy. But neither side can claim it doesn't matter. Three years ago, if just 538 of the 97,488 Floridians who voted for Green Party nominee Ralph Nader had swapped pledges with Democrat Al Gore's supporters in other states, Gore would have won in Florida and become president.

In 2004, the swaps will go something like this: Democratic voters in Texas, Utah, Wyoming and other Republican strongholds will assume that the Republican ticket will win those states easily. Over the Internet they will find Green Party members and others in states where the contest is expected to be close, and the Democratic voters will propose a swap: I'll vote Green in my state if you vote Democratic in yours. Or maybe the Green will proposition the Democrat.

If pledges are exchanged and promises kept, an utterly ineffectual Democratic vote in Texas will be transformed into a meaningful one in, say, Florida. The Green swappers will have supported the Green candidate, but they won't be saddled with the "spoiler" label they had in 2000, when Nader's run drained support from Gore. Now imagine these alliances multiplied by the tens or hundreds of thousands, involving every swing state.

Vote-swapping need not be limited to the political left, however. The only requirement is the presence of an alternative candidate of any political stripe. Indeed, there were reports in 2000 of swing-state supporters of Reform Party nominee Pat Buchanan trading with Bush backers in stronghold states.

None of this would be possible, of course, if we elected our presidents by nationwide popular vote. Gore would be president today, having won 540,000 more votes than President Bush in 2000. Instead, we have the Electoral College, a legacy of the slave days, a system that is actually a series of 50 state-by-state contests, with the winner of each state receiving the tally of all its electoral votes, a number varying by state according to its population. This is why a vote for Gore in Florida three years ago ultimately counted for nothing because Gore lost the state and all 25 of its electoral votes. (It's also why a vote for Bush in California counted for nothing.)

A curious form of democracy, isn't it?

The idea of trading votes across state lines made its debut in 2000, but it popped up so late in the campaign and was slowed by a controversial crackdown by California election officials. Today the strategy's potential has grown along with the increasing role of the Internet in politics. Online organizing this year has lifted the insurgent Democratic presidential candidacies of former Vermont Gov. Howard Dean and Gen. Wesley Clark. At least one vote-trading Web site already is programmed to go online at a moment's notice.

Another factor this year, evident in the California recall, is a general repudiation of politics as usual. Americans seem of a mood to take more control of the political process. The Internet gives voters the power to do something, finally, about the Electoral College.

If you like politics as usual, suffice it to say vote-trading isn't for you.

A vote for Nader is a vote for Bush was the cautionary mantra in 2000 that gave birth to vote-trading. Across the country, unknown to one another, a small number of Nader supporters realized that the Internet could be used to resolve a dilemma--do they vote for Nader, effectively helping Bush, or do they turn away from Nader and vote for Gore, their second choice?

Then Jamin B. Raskin, a law professor at American University in Washington, D.C., tapped out a manifesto that, on Oct. 25, 2000, was published by the online magazine Slate. Within a few days several new vote-trading Web sites sprouted, recording hundreds of thousands of visits.

This may sound impressive, but most political reporters regarded it as little more than a novelty. On my beat, however, it was the best story of all. I was a political writer for the Industry Standard, a now-defunct business magazine that covered what we liked to call "the Internet Economy." My mission was to explore how the Internet was influencing politics and policy. Forty years after TV helped John F. Kennedy defeat Richard M. Nixon (or so it is assumed), various Web gurus, usually with a profit motive, were saying the Internet would be just as big a factor in the Bush-Gore race.

I was skeptical. Yes, the medium had proven great for organizing, circulating petitions and raising money--a new dog doing old tricks. But vote-trading was an original idea, a strategy inconceivable without the Web. With my Silicon Valley indoctrination, I wondered whether vote-trading might be the political Next Big Thing, the proverbial "killer ap"--a premium application--that would decide the presidency.

When Raskin's article appeared, he was unaware that others already were at work on the idea. Three weeks before his piece, a Web site called VoteExchange.org had gone up. Steve Yoder, a technical writer in Washington, D.C., explained that he and a friend had seized upon the idea over dinner. Yoder, who had never created a Web site before, bought software and pecked around until he erected a simple site that he publicized through e-mails to friends and classified ads in the Washington City Paper.

On Oct. 23, Jeff Cardille, then a graduate student in environmental studies at the University of Wisconsin, started a Web site called Nader Trader. Elsewhere, a small team of techies hired by a Rhode Island woman, Lucia Gill Case, were at work on a more elaborate site, WinWinCampaign.org. In San Francisco, programmers Alan Porter and Anand Ranganathan had acquired the domain name Votexchange2000.com. Those two, however, were beaten to the punch by Los Angeles Web pros Jim Cody and Ted Johnson, friends who worked together at the entertainment site Hollywood.com. Inspired by Raskin's article, they got Voteswap2000 online even before Votexchange2000 and WinWinCampaign appeared. Soon more than a dozen sites were online, attracting thousands of visitors daily. Critics on the political right sent angry screeds, but the strategy appealed to many on the left.

"I thought this was absolutely brilliant," recalls Lynet Uttal, a 44-year-old University of Wisconsin-Madison professor in the human development and family studies department. She covered the Nader sign on her front lawn with a handmade model that said: "Be a Nader Trader!" and included the URL of nadertrader.com. Vote-trading, Uttal says, "combines that pragmatic vision and the idealistic vision. This is how I worked the system to make my vote count again."

Some folks in Wisconsin formed alliances with people such as Dawn and Jack Chapman, Wyoming retirees who know how lonely it can feel to be liberal in their state. Through friend-by-friend networking, the Chapmans recruited a group of about 30 people who agreed to vote for Nader in Wyoming in exchange for Gore votes in Wisconsin. Gore wound up winning Wisconsin and its 11 Electoral College votes by just 5,708 votes out of more than 2.5 million cast.

"It was a good feeling," Dawn says. "We feel like we did have an effect and our votes weren't wasted." The Green Party supporters in Wisconsin were content knowing that they had helped Gore, and still had helped with Nader's national tally. Their goal was for Nader to get 5% of the national vote, a threshold that would qualify the Green Party for federal campaign funds in 2004. (Nader got just 2.7%.)

No one knows how many votes were swapped in 2000. For one thing, "vote-trading" is a misnomer. Pledges are exchanged, not ballots. Web site records suggest that more than 30,000 people engaged in 15,000 pledge exchanges in 2000. These numbers are squishy; the actual ballots are secret, and no one can say how many "nervous Naderites" ultimately may have voted for Gore without the promised quid pro quo.

On the other hand, the total number of exchanges may be much higher. Cardille, the movement's unofficial historian, cites anecdotal evidence indicating that thousands of trades were made among family and friends, and thus were unrecorded by the Web sites.

Despite Bush's triumph, the strategy did not fail so much as fall short. In New Mexico, for example, Gore beat Bush by only 366 votes. Web site records, Cardille says, show that vote-swappers won that state for Gore.

Vote-trading in 2000 functioned under a cloud of suspicion. Jeanne Zang, 54, is a Pennsylvanian who supported Nader. When a member of her Unitarian Universalist church suggested that she swap her vote, "my initial reaction was that it was unethical."

But Pennsylvania was a swing state. Zang gave it more thought. "This may sound cynical, but my view became, well, these politicians are always manipulating things for their own benefit, so why don't we turn the tables on them and manipulate things for our benefit." Several church members, Zang says, voted for Gore after securing promises from Democrats in "safe" states to vote for Nader. Without that promise, Zang says she is certain she would have voted for Nader.

At the time, political pros tended to regard vote-swapping as a quirky Internet fad. "It was a blip on the radar," says Scott McLarty, a Green Party spokesman. It got Gore's and Nader's attention long enough for both to express their opposition, saying they wanted to win everybody's vote. The moral objection was often summed up in a comment that took on the tinny ring of a cliche: "People should vote their conscience."

Raskin heard it often: "My response is, well, what if your conscience is a bit more complicated than theirs?"

With traffic at vote-trading Web sites zooming to hundreds of thousands of visits per day, Raskin encountered remarkable resistance from the political camps that the strategy was designed to benefit. Among the Greens, Raskin says, "one guy denounced me as a Democratic Party operative who was trying to get my resume in early for the Gore administration. The thing that blows me away is that a lot of Greens were saying it was immoral and Democrats were saying it wouldn't work. And the people who got the point were the Republicans who were cracking down on the Web sites."

Election officials in a few states raised legal objections, and the broad publicity they received cooled the swelling ardor for vote-swapping. Leading the anti-swapping sentiment was California Secretary of State Bill Jones, a Republican. On the day before Halloween, Cody and Johnson received an e-mail from Jones' office declaring that Voteswap2000 "is engaged in criminal activity." Each brokered vote constituted a felony carrying "a maximum penalty of three years in state prison."

Jones' office cited a section of the Elections Code that declares it a crime to get "any money, gift, loan or other valuable consideration" for inducing "any other person to . . . vote or refrain from voting for any particular person or measure."

The Web activists were stunned. "I guess that would be three years each for 2,500 violations," Cody says. He and Johnson reluctantly shut down their site. Cody envisioned state police seizing his computer, the means of his livelihood. "It wasn't a comfortable evening, I'll put it that way," he says.

Raskin accused Jones of using his office for partisan gain, successfully intimidating activists who were simply exercising their First Amendment rights. The ACLU and National Voting Rights agreed and sought an emergency temporary restraining order against Jones.

But the movement had taken a blow. As word of Jones' threats spread, Porter and Ranganathan also decided to shut down Votexchange2000. Porter was willing to continue and force a legal showdown, but Ranganathan, a citizen of India who was in America on a temporary work visa, was fearful of repercussions. The day before election day, U.S. District Court Judge Robert J. Kelleher refused the ACLU's request in a one-sentence order devoid of explanation.

Certainly the buying and selling of votes is outlawed in every state and by federal law. Yet election officials in only four other states--New York, Minnesota, Arizona and Oregon--followed Jones' lead in declaring that at least some of the vote-trading sites violated state law.

Minnesota Secretary of State Mary Kiffmeyer, a Republican, called the practice "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."

Democratic officials in Maine and Republicans in Nebraska, however, found that vote-trading did not violate the law, as did the U.S. Department of Justice. More significantly, the silence of election officials in the vast majority of states suggested that they viewed the strategy as legal.

Nonetheless, word of the crackdowns left many people believing that vote-swapping is illegal. It wasn't true. In California, as Jones threatened Voteswap2000, his office found the WinWinCampaign site to be within California law. The difference turned on a technical point, Jones' office said. Voteswap2000 automatically matched registrants who already had declared an intention to swap, and thus it was perceived as "brokering" transactions. WinWinCampaign matched people who were considering a trade, and thus it was perceived as merely fostering communication.

Rather than outlawing vote-swapping, Jones actually approved forms of it.

Not long after the 2000 election, I interviewed Jones, who Democrats claim had added incentive to eliminate vote-swapping: During the Republican primary, he had switched allegiances from Bush to Arizona Sen. John McCain. Now he had more reason to get back in the Bush camp's good graces.

Jones said his actions simply reflected his understanding of California law, which prohibits inducing votes by "any valuable consideration." Jones reasoned that the "value" here was the promised vote of another. "Is your vote valuable to you? Mine is to me," he said.

But for me, Jones' rationale failed the common-sense test. I presented a scenario to one of his deputies: If I tell my wife, "I'll vote for the school bond if you vote for the transportation tax," and she said OK, would we be conspirators in election fraud? His answer: That would be illegal also.

Raskin counters that vote-trading is a time-honored practice in legislative bodies, where lawmakers cut deals that are sometimes called "pairing" and "log rolling." Nobody considers this bribery; it's just politics, the mutual back-scratching that is part of the art of compromise.

In his recent book, "Overruling Democracy: The Supreme Court vs. the American People," Raskin points out that state laws that ban the exchange of money and other material goods for votes exist expressly "to prevent people from creating a financial market in votes, converting financial currency into units of political power. But this is not what the vote-trading movement does. No money (or anything else) changes hands; no one makes a penny on it. The entire motivation for the discussion and agreement is a political one, not financial. How can a vote constitute 'valuable consideration' within the meaning of a vote-buying and vote-selling statute when the whole purpose of the statute is to prevent votes from being treated like objects of commercial transaction?"

Vote-traders argue that the practice is an ingenious and moral response to an archaic compromise conceived by the founding fathers during an unjust age. The Electoral College was conceived to ensure that large states didn't unduly dominate small states. In doing so, the system effectively endorsed the notorious agreement that, for census purposes, each slave would count as three-fifths of a human being. (Under the Electoral College, every state and the District of Columbia is allotted electoral votes equal to the number of legislators it has in the Senate and House of Representatives.)

So why do some people still regard vote-trading as unethical? There is a division among scholars.

Jean Bethke Elshtain, a professor of ethics at the University of Chicago Divinity School and the author of the 1995 book "Democracy on Trial," takes a dim view of vote-trading. "We aren't in a pure democracy, and it was never intended that it should be," Elshtain says, explaining that the Electoral College is one of many institutions that mediate against simple majority rule. "I don't know how huge an ethical question this is, but . . . in the civic sense it sort of undermines the importance attached to a vote." The "calculated" action of vote-traders, she says, "diminishes" the action of other voters who are "acting in good conscience."

Elshtain says she sees "a qualitative difference" between American citizens trading votes and Chicago aldermen exchanging favors that would put a playground in one neighborhood and stoplights in another. "There's something about [vote-trading] that certainly rubs the wrong way."

However, it's a good thing to Chris Hables Gray, author of the 2001 book "Cyborg Citizen." "People who are upset about vote-trading are locked into a naive and archaic idea of what citizenship should be. At least the vote-traders are being more proactive," says Gray, an associate professor of computer science at Montana's University of Great Falls. "That's the good thing about the Internet: citizens communicating to try to make an individual's voice more important."

Gray says that vote-trading could rock a two-party system he describes as "the Demicans and Republicrats" and help counter the corrupting influence of corporate money. Gray, who voted for Nader in 2000, says if the Greens embraced vote-trading, "they might at least be as important as a medium-sized corporation."

Since the 2000 election, I've heard many people question the propriety of vote-swapping, ascribing cynical motives to its advocates. Yet the vote-traders I spoke to seem enthusiastic and idealistic about democracy. Consider an excerpt from an e-mail written on the eve of the 2000 election by Vietnamese immigrant Vinh Pham, then 24, the Orange County creator of VoteExchange.com: "Tomorrow I will be casting my first vote as a citizen of the United States. A privilege I could only dream of during the 17 years growing up in Vietnam. A privilege I have pledged my life to honor and protect."

Compare his words to those of a Washington reporter who told me that if vote-swapping becomes popular, surely Congress will outlaw it.

How? Well, the USA Patriot Act does allow for Internet surveillance in the search for terrorists. But I don't see much tolerance for the surveillance of Americans trying to decide how to vote.

Raskin believes nothing is stopping the strategy for the time being. "The enemies of vote-trading would have to pass a law to make it illegal to change your mind."

When gore won the nationwide vote but lost the electoral College, it was the third time in American history that the popular will did not prevail. The winner-take-all system creates inequities that Americans would consider outrageous if they happened anywhere but here. Presidents as different as Nixon and Jimmy Carter opposed the Electoral College, but dozens of reform bids have withered away.

Abolishing the system would require a constitutional amendment, with passage by three-fourths of the state legislatures. But many states, small and large, like the extra clout that the Electoral College provides. Defenders say it forces candidates to take every state into account.

Will vote-trading be a big factor in 2004? That probably won't be known until after the major party and third-party nominees are determined. At this point, most people interviewed for this article see less motive for vote-swapping. Voters on the left now recognize that the 2000 race was "not a case of Tweedledee and Tweedledum," says Joan Blades, who founded MoveOn.org with her husband, Wes Boyd. MoveOn began as an e-mail petition sent to friends as Congress deliberated whether to impeach President Clinton over his affair with Monica Lewinsky, urging Congress to "Censure and Move On." The petition took on a life of its own, and now MoveOn boasts an e-mail list of more than 2 million. It has raised more than $9 million, mostly in small sums, for its causes.

Blades is not a fan of vote-trading, but she also blames the Electoral College for distorting democracy. It's possible, Blades says, that MoveOn membership might discuss the merits of vote-trading in one of their "action forums."

Another way to boost vote-swapping in 2004 is for the Green Party to embrace it officially--or at least not actively oppose it. But at this point, there is no way to know what the party will do. The Greens are anything but centralized, and the party officials I spoke with were divided in their opinions.

Whatever happens in 2004, vote-trading pioneers believe that their cause will have a rendezvous with destiny someday. In January 2001, as Washington prepared for the presidential inauguration of George W. Bush, Raskin hosted a conference at American University that brought together Yoder, Cardille, Case, Cody and others who were involved in the 2000 vote-swapping drama. Cardille shared photographs he had collected from vote-traders such as Jeanne Zang and other artifacts of a moment in history that occurred largely in cyberspace and in the hearts and minds and on the ballots of thousands of Americans. The gathering was not a big story. But Cardille gladly provided some mementos, including vote-trading advertisements, to a curator from the Smithsonian Institution who is following Internet politics.

Someday you may well visit the Smithsonian and see Lynet Uttal's "Be a Nader Trader!" sign. By then, vote-trading would have made its mark on American politics. If the 2004 election comes down to a few swing states, that may be sooner than later. The creators of Votexchange2000 are ready to launch their next version at any time. When Alan Porter and Anand Ranganathan registered their bipartisan domain originally, they thought it had a nice Hollywood ring, reserving the names for many elections to come. Confident now that their site was legal despite the state's threats, Ranganathan laughs as he imagines a slogan for the sequel.

"Votexchange2004: This time it's personal."

For The Record Los Angeles Times Friday November 14, 2003 Home Edition Main News Part A Page 2 National Desk 2 inches; 98 words Type of Material: Correction Presidential votes -- An article on vote-swapping in the Nov. 2 Los Angeles Times Magazine, "Ballot Busters," incorrectly stated that Al Gore's defeat in the 2000 presidential election marked the third time in U.S. history that the popular will of voters did not prevail. Although Gore's loss did mark the third time a candidate won the popular vote and lost in the electoral college, the article failed to mention that in 1824, Andrew Jackson won a plurality both in the electoral college and in the popular balloting, but the House of Representatives voted John Quincy Adams the winner. For The Record Los Angeles Times Sunday November 30, 2003 Home Edition Los Angeles Times Magazine Part I Page 6 Lat Magazine Desk 2 inches; 83 words Type of Material: Correction An article on vote-swapping ("Ballot Busters," Nov. 2) incorrectly stated that Al Gore's defeat in the 2000 presidential election marked the third time in U.S. history that the popular will of voters did not prevail. Gore's loss did mark the third time a candidate won the popular vote and lost in the electoral college. On a fourth occasion, in 1824, candidate Andrew Jackson won both the electoral college and the popular vote, but the House of Representatives declared John Quincy Adams the winner.
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