Op-Ed
Despite its name, this is not another sex column
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Barely Legal
September 2, 2008 - 11:00pmWelcome to the first installment of Barely Legal, a joint effort of The Sun and the Cornell Law Review, where, roughly every two weeks, one of my fellow inhabitants of Myron Taylor Hall will expound on some legal issue relevant (at least tangentially) to the Cornell community. Although today is Wednesday, from here on out you’ll find us here every other Monday.
Hopefully, this space will give non-law students the ability to see a little of what goes on inside Myron Taylor, and will give law students the ability to communicate with the outside world a little more. (Unfortunately, a lot of us don’t venture out to the rest of campus very often, and it’s rare to see any of you over here.) With the amount of legal issues that affect Cornell students every day, this should be a place for some interesting perspectives.
Anyway, I’m going to kick this off with a small discussion of a legal matter not really directly relevant to a college campus, but that is nevertheless likely at the forefront of many students’ minds in the midst of the second of two political conventions – this November’s election.
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Remember the controversy surrounding so-called “vote swapping” from the 2000 (and 2004) elections? Does the term “Nader’s Trader’s” ring a bell? No? Well, let me refresh your memory:
The Internet has had a profound effect on the electoral process in the United States, from spreading a candidate’s message to fundraising from the masses. But, in no way has the Internet threatened to affect the outcome of an election so directly as it has through vote swapping — a process in which a voter who believes a presidential candidate will win his or her state “swaps” votes with a voter who supports a third-party candidate in a so-called “swing” state.
The implication is that the candidate that both voters want to win — and expect can win — gets a vote where it will make the most difference, while giving a third-party candidate a vote that both indicates support and helps provide federal funding for future elections.
Several state governments challenged this procedure early in this decade, saying, for example, that it was akin to the illegal practice of vote buying, and that it subverted the work of the electoral college.
But, in August 2007, the United States Court of Appeals for the Ninth Circuit decided in a case called Porter v. Bowen that vote swapping is a protected activity under the First Amendment, since swapping one’s vote essentially constitutes protected speech. Think: is vote swapping really any different than two people having a conversation about the candidates and then, unbeknownst to one another, switching their votes?
While not every jurisdiction will necessarily agree with the outcome of this case, this is the kind of issue that can really only come up once every four years, and it then rapidly becomes moot. Whether the Supreme Court ever actually takes on this issue is anyone’s guess, but for now, for the states in the West encompassing the Ninth Circuit, vote swapping is here to stay.
Additionally, the reality is that vote swapping is only likely to occur in Presidential elections in which there is a strong third-party candidate representing a party aiming for funding in the next election and where there is also a hotly contested race between the two major-party candidates. This was the case with Ralph Nader, representing the Green Party, in 2000 — when he siphoned-off votes from Al Gore in his race against George W. Bush.
In the past, vote swapping has only directly affected the political atmosphere on the left side of the political arena. However, it appears that, this year, the opposite could potentially occur:
Republican Congressman Bob Barr is running for president on the ticket of the Libertarian Party, which some believe will take some votes from Sen. John McCain in the upcoming presidential election. Some speculate that members of the Republican and Libertarian parties will attempt vote swapping so as to boost Barr’s popular vote count, but still deliver the Electoral College for McCain.
Will we see the vote-swapping controversy renew itself over the next few months? Only time will tell.
Eric Finkelstein ’06 is a former Sun managing editor and is currently a third-year law student and the executive editor of the Cornell Law Review. Barely Legal will usually run alternate Mondays this semester.
Lack on reserch on nader's eefect on the 2000 election
I realize that your comment Nader that "he siphoned-off votes from Al Gore in his race against George W. Bush." is merely dicta, but it undercuts your credibility. Here is a section form a larger post on this myth I posted at http://wilderside.wordpress.com/2008/07/26/nbc-finally-starts-to-underst...
For those who are still stuck on the “spoiler” myth, we can return to the ultimate fable, Ralph Nader’s run as the 2000 Green Party presidential candidate. The following quote is from Building A New Progressive Majority by Al From on the Democratic Leadership Council’s (DLC) own website (Both Clintons, Gore, Lieberman, Kerry and Edwards are all member of the DLC)
"They maintain that Gore lost not because of his populist, big government message but because of cultural and moral issues, fueled by resentment of President Clinton’s behavior and by Gore’s own personal shortcomings. I think they’re wrong on all counts. The assertion that Nader’s marginal vote hurt Gore is not borne out by polling data. When exit pollers asked voters how they would have voted in a two-way race, Bush actually won by a point. That was better than he did with Nader in the race."
It is interesting to note that From’s analysis also undercuts the “spoiler” mythology. He does not see voters as being along a left-right dichotomy where they choose among the candidates on their side of the aisle. IN other words, he does not accept that having a second candidate who is labeled as being on the left necessarily takes away votes from the first candidate who is labeled leftist. Instead, he brings up the issue of the negative vote, i.e. that some voters where choosing among candidates who were not Al Gore because they disliked Clinton/Gore. Some of those voters chose Nader, but would chose Bush if Nader were not running. There goes “spoiler” to keep the Easter Bunny company.