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Selling Votes?

Posted by Rick · July 28th, 2004 · 7 Comments

An email was sent to one of my rarely-used mailboxes today. Like a lot of other spam it makes a questionable offer.

Nader doesn’t have to “spoil” the election in 2004, like what clearly happened with Florida in 2000. Try the new vote swapping system at www.DefeatBushAgain.com, which has been set up to provide Nader voters in key battleground states with the means to “swap votes” with Kerry voters in non-battleground states. You can also support the project by either donating to its cause or by buying or downloading and displaying one of several available bumper stickers!

Now, I’m not that knowledgeable about election law, but it appears to me that this is probably an illegal scheme. Offering up one’s vote for consideration would appear to be selling one’s vote. That you are selling your vote to someone else in exchange for their vote doesn’t seem to save it.

On the other hand, isn’t that what politicians do all the time? “I’ll vote for your proposal if you’ll vote for mine….”

I don’t know what to make of this. But it does seem to be morally troubling.

Categories: Politics-In-General


7 responses so far ↓

  • 1 Lisa // Aug 1, 2004 at 11:47 pm

    Rick –

    I went to the vote-swapping site mentioned on your blog to check it out and there was an update from 8/1 regarding the legality of vote swapping. It’s a link to a law review article you’ll probably find interesting. The conclusion is that the process is definitely legal, but quesgtionably ethical and GET THIS it is NOT supported by NADER… the site purports to be advancing Nader’s cause by using a process of which he does not approve. Go figure.

    Anyway – here’s the link to the law review article:



  • 2 Marc J Randazza // Sep 7, 2004 at 11:38 am


    You have completely mischaracterized my ethical conclusion stated in the article you cite.

    I presume that you did not read the final sentence in the “Ethical Analysis” chapter of the article:

    “Online vote-pairing is void of corrupt intent or outcome and is a perfectly ethical use of an individual’s personal political power.” Marc J. Randazza, THE OTHER ELECTION CONTROVERSY OF Y2K: CORE FIRST AMENDMENT VALUES AND HIGH-TECH POLITICAL COALITIONS, 82 Wash. U. L. Q. 143, 240-241 (2004).

    If you are going to cite to my work, please do so accurately.

    -Marc J. Randazza

  • 3 Lisa Ellis // Sep 7, 2004 at 3:26 pm

    Marc – This was a long time ago and quite frankly nothing I really give a shit about so I do not recall the exact source of my comments, except that there was a link on the site to a REVIEW of your article, and the REVIEW or synopsis or something other than your actual article, stated that you determined the process to be legal and questionably ethical. I did in fact skim your article, itself, and to be quite honest it was only a skim. However, in more than one place you noted that the legality of the process was clear but that whether it was ethical was not as clear-cut. When I made the statement above, that the process is quesitonably ethical, I INTENDED that to mean that the issue is still debatable and that there is no crystal-clear conclusion (the fact that you may have reached a conclusion does not mean that yours is the only opinion out there). Perhaps it was a bad decision for you to include a single sentence finding the practice ethical, in a verbose and lengthy law review article, especially if that sentence contradicts statements you’ve made earlier in the piece. My apologies if you believed I was misquoting you.

  • 4 Marc J. Randazza // Sep 8, 2004 at 6:54 am

    So you were citing (as you say) “something other than [the] actual article” when you cited the article as authority for the conclusion that the practice is questionably ethical?

    Regarding the statement that my conclusion is not the only one out there – I couldn’t agree more. Obviously, you have the opposite conclusion.

    If you have an opinion, then claim it. Don’t attribute it to someone else. Your intellectual weakness is that you did not claim this position as your own, but posted it as MY opinion.

    Next time you decide to cite an author, read his or her work. If you can’t divine his conclusion by reading the final sentence in the conclusory chapter in the work, perhaps public commentary on it is left to someone with more developed reading comprehension skills.

    On the other hand, if you want to be intellectually complacent, don’t take offense when someone calls you to task for it.

  • 5 Rick // Sep 8, 2004 at 11:58 am

    Frankly, you both deserve a spanking on this one. Rudeness isn’t necessary — or fruitful — in straightening out misunderstandings. (I’ll have to grant that the “frankly nothing I really give a shit about” bit may have invited your response. Even the Russians, though, have learned that escalation accomplishes little of value.)

    There are many ways of jumping to conclusions.

    Perhaps, based on self-imposed time constraints, Lisa skimmed your article and mistakenly read some of the build-up to your conclusion as representative of your own view. As you noted, reading the entire article may have resulted in her recognition that this had happened. That, of course, is all good and well-understood in retrospect.

    Not that this is all-important here, but loads of people skim articles. I’ve little doubt that you’ve perhaps done it yourself from time to time. And while I might agree that when citing a work, one perhaps should take the time to read the entire work one cites, not even the justices on the California Supreme Court do so. (Witness the fact that they got the meaning of Federalist No. 51 exactly backwards when they cited to it in People ex rel. Gallo v. Acuna, 14 Cal.4th 1090 [60 Cal.Rptr.2d 277, 929 P.2d 596] (1997).)

    A second way one can jump to conclusions it to infer something from one misinterpreted piece of evidence. In this case, you appear to assume that Lisa has some deficiency in her reading comprehension skills based on her mistaken use of your work. Could you not have found a less abusive way of responding to her?

    Or did you mean to insult her? If your comment was mere churlishness and you were not accidentally jumping to conclusions, but only providing the appearance of it, then I stand corrected.

    On the other hand, what, exactly, would that say about you?

    As I said, I think you both boinked up this opportunity. I hope that my pointing this out hasn’t damaged my own ability to have the pleasure of knowing you both better going forward.

  • 6 Marc J. Randazza // Sep 9, 2004 at 7:13 am

    Then in the spirit of your conclusory sentence, lets turn the boat 25 degrees – what do you think is morally troubling about the practice?

    I’ve not heard many good arguments as to why the practice is unethical. That doesn’t mean that there are none. In fact, I’m a bit surprised that someone has not presented an intelligent criticism of the practice.

    I’m interested to hear your comments. I greatly prefer to hear challenges to my conclusions over agreement with them.

  • 7 Rick // Sep 9, 2004 at 9:15 am

    My comments here are offered as my first-real-thoughts on this topic, because you asked me (I’m assuming it was me, since it appears to reference the last sentence of the main article to which all these comments are appended) to elaborate on my conclusory sentence, which I took to mean “concluding,” since I don’t see how my musing over something could rise to the level of “conclusory.” 😉

    Even here, I’m sure I don’t do a great job of it. I do not intend this in the same spirit as “frankly nothing I really give a shit about” voiced by Lisa. On the contrary, I do care about it, which is why I floated the topic. At the same time, any one individual has limited time, energy and other resources. Mine are currently devoted toward learning the law in my third (out of four) year in my J.D. program; trying to refocus my blog writing to orient it more towards legal topics — or at least including discussions of cases in context of current events or issues —; writing writs, appeals and motions for whatever attorney happens to call and ask in any given week; finding a job as a law clerk in a criminal defense office; and finishing a law review article on the use of public nuisance actions against gangs. I mean no rudeness or denigration of your work in saying I haven’t and can’t give much time to the topic of vote swapping.

    Keep in mind, also, that I didn’t read your article; Lisa, a reader of this blog, did, and left her comment about it.


    “A people having sovereign power should do for itself all it can do well, and what it cannot do well, it must do through its ministers.” Charles de Secondat, baron de Montesquieu, The Spirit of the Laws 11 (Anne Cohler et al, eds., 1989) (1748).

    My first contention is that one thing people cannot do is determine the best electoral system to ensure that they are properly represented.

    The average American — and I don’t necessarily mean “average in intelligence” here, just your ordinary American going about their normal daily business — doesn’t have all the resources to make reasoned decisions about most things involving the management of the country. A great deal of thought went into constructing a nation with proper checks and balances within the system, including the construction of different methods for electing representatives at different levels of government, in order to accommodate this fact.

    The Federalist Papers numbered 59-61 spend quite some time in the explanation of concerns over elections expressed at the Constitutional Convention and how those concerns are handled by the Constitution. One such concern was for the balance of power between the overarching federal government and the intrigues of more localized bodies. For the most part, they were concerned with state legislatures, but the comments they make are applicable, as well, to individuals.

    These structures pervade the political institutions specifically to protect against particular evils, including preventing certain groups, or classes, from gaining control inappropriately.

    The second objection I have is that a vote is the expression of a citizen’s will. Theoretically, there is some thought that goes into this process. In reality, most citizens do not give their votes much thought. I’m not even sure of the numbers, since I don’t follow such things, but I have somehow acquired the belief that a majority of citizens give so little thought to their vote that they do not even exercise the right to vote. Those who vote are seldom much better; as much (or, should I say, “as little”) thought goes into choosing for whom and for what to cast a vote as goes into deciding what to have for dinner, or which movie to see. Perhaps not surprisingly, the same forces that drive the latter choices work to direct the former. Vote trading, it seems to me, risks enhancing the effects of this at the federal level, bypassing the checks and balances built into the system, and allowing an emergent mob rule that may be somewhat subdued by the fracturing of power under the current system.

    I’m certain there are perhaps other ways to set up a system for a large republic such as ours. Montesquieu, after all, did worry that the size of a republic might limit its utility as a form of government. Hamilton noted this when he said, “The opponents of the PLAN [the Constitution] proposed have, with great assiduity, cited and circulated the observations of Montesquieu on the necessity of a contracted territory for a republican government.” The Federalist No. 9, at p. 68 (Alexander Hamilton) (Clinton Rossiter, ed., 1961); textual alteration in the original; bracketed section added for clarification.

    As I said, I haven’t given this a lot of thought; the mechanics of voting are not my specialty and I’m not much of a political scientist. That’s why my concluding sentence above expressed an inchoate feeling (not a conclusion).

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