It's not a new TV show, and it's not really a new idea. The U.S. Senate, for example, has allowed "live pairs" for decades. If you need to be away and want to vote no on a bill, you find someone else who needs to leave but would have voted yes. The two of you pair up, and take off, and there is no effect on majority passage of the bill.
But a decision this week by the U.S. 9th Circuit Appeals Court may mean "vote swap" could be coming soon, and on a much larger scale, to a state near you.
In the Electoral College where we choose presidents, only some states are "in play," or close enough to make votes matter a lot. If a state is in play, the system punishes people who vote for anyone outside the two "major" parties. The reason is that in most states the Electoral College is "winner-take-all," which means if you get the most popular votes, even less than a majority, you get all the electoral votes.
So a few votes can swing the entire outcome. Those 537 Republican votes in 2000 in Florida meant George W. Bush was credited with all 25 electoral votes and Al Gore got nothing.
But there were 97,488 votes for Ralph Nader in Florida in 2000. That's not much, compared to the 2.9 million Bush and Gore collected. But 97,488 is a lot more than the final margin of 537, and many of those Nader voters would have picked Gore over Bush.
So, Naderites "cost Gore the election" in Florida. And there have been other elections where independents changed the outcome. In 1992, Ross Perot got 19 percent of the popular vote, affecting the outcome in 15 or more states and possibly swinging the election to Bill Clinton.
What are voters to do? Suppose you love Indira, the independent candidate, but feel strongly that Rex the Republican would be better than Del the Democrat. You want Indira to have more votes nationally (she needs 5 percent to qualify for public funding of her next campaign). But you don't want to risk having Del beat Rex in your home state.
In the brightest red and darkest blue states the outcome won't be close, and you can vote your heart. In close states, though, you want to devise a "swap," so the candidate you like best gets an increased vote total nationally, but the candidate you like second still beats the candidate you hate.
So a Florida or Ohio voter might agree to vote for Rex, even though they like Indira best. A North Carolina or California voter who favors Rex might agree, in exchange, to vote for Indira.
There were several websites set up to accomplish these sorts of swaps. In 2000, there were voteswap2000.com and votexchange2000.com. In 2004, we saw votepair.org. There are others, and likely will be more.
The reason there will be more is this week's court decision referred to earlier. On Aug. 6, the U.S. 9th Circuit filed its decision in Porter v. Bowen. And the decision, by and large, ruled out state interference with vote swapping or "pairing."
The decision is complex, but there is clear support for three things. First, states cannot criminalize vote swapping or prosecute website operators. Second, vote swapping is protected under the First Amendment, under some circumstances. Finally, and most importantly, the judges of the 9th Circuit asserted that legal vote swapping might even be implied by the intent of the Electoral College. Here's what they said:
"The state's interest in preventing the subversion of the Electoral College, assuming it to be a legitimate interest, was not furthered by the secretary of state's actions. The whole point of the websites was to prevent the preferences of a majority of a state's website owners from being frustrated by the winner-take-all systems in place in most states. The outcome would not have represented a subversion of the Electoral College, which would have continued to operate as set forth in the Constitution."
As a result, vote swapping will be a new option for those of us who care about third-party candidacies and who want to increase the competition in our insulated political system.