Author:O'Leary, Daniel P.
  1. Introduction

    The 2016 United States Presidential Election marked the fifth time in history that the winner of the Electoral college failed to win the popular vote. (2) In fact, the winning candidate, President Donald Trump, achieved the dubious distinction of losing the popular vote by the widest margin of any candidate in American history. (3) President Trump launched the Presidential Advisory Commission on Election integrity to investigate the election fraud that supposedly contributed to his underwhelming victory. (4)

    In January 2018, that Commission was shuttered without issuing a report identifying any widespread voter fraud by domestic parties. (5) But before the issue of fraud in the 2016 Presidential Election is submitted to history, it is worth analyzing a questionable form of political activity that a growing number of voters are participating in: online vote swapping. (6) Enabled by widespread internet accessibility and the rising popularity of social media, what was once an obscure legislative practice is being adopted by a growing number of voters in presidential elections who are dissatisfied with both the Electoral College and federal and state election laws. (7)

    With its strange terminology, dubious justifications, and questionable results, it is unsurprising that the Electoral College is unpopular among voters. (8) Critics argue that the vote counting method employed by the Electoral College creates incentives for voters in "non-competitive states" to abstain from voting while voters in "competitive states" possess a disproportionate influence over the outcome of the presidential election. (9) Some advocates for online vote swapping assert that allowing citizens to swap votes may neutralize this systemic disincentive to vote. (10) After perusing the paltry voter turnout figures in recent presidential elections, such advocates may have a point. (11)

    This Note argues for the reevaluation of the legal status of online vote swapping in the wake of its use in the 2016 Presidential Election. First, it will discuss the legal basis for voting rights in the United States in order to frame the argument that follows concerning the right to vote. (12) Second, it offers a brief history of voter fraud in the United States to demonstrate that it is a practice "as old and venerable as the Constitution itself." (13) Third, it places the practice of online vote swapping within the broader movement toward Electronic Democracy ("E-Democracy"), as political rights and institutions are expanded into the digital context. (14) Fourth, it analyzes the Ninth Circuit Court of Appeals' opinion in Porter v. Bowen, the lone case that stands for the proposition that vote swapping is legal. (15) Finally, it explores the underlying rationales for prohibiting vote-buying, of which online vote swapping is a variant, through the work of renowned elections law scholar Richard Hasen. (16)

    Using Judge Kleinfeld's dissent in Porter v. Bowen, and Hasen's justifications for prohibiting vote buying, this Note argues that at least some online vote swapping websites violate 52 U.S.C.S. [section] 10307 and state election fraud statutes and undermine the operation of the Electoral College. (17) This Note focuses on websites that, to varying degrees, broker vote swaps by pairing citizens interested in swapping their votes who have no pre-existing connection to each other.

  2. History

    The Constitution does not include an explicit right to vote. (18) Instead, it conditions state participation in the federal government on each state guaranteeing a "Republican Form of Government." (19) Therefore, administration of elections and voter qualifications are governed by state law. (20) However, the Fifteenth, Twenty-Sixth, and Twenty-Seventh amendments limit states' adoption of voter qualifications. (21)

    A The Electoral College: An American Anomaly

    The Constitution's Electoral College is a unique system for electing a President. (22) The number of electors assigned to each state is determined by formula: one elector for each two senators, plus one elector for each member of the state's delegation to the House of Representatives. (23) In 1845, Congress established a uniform national election date:

    the first Tuesday following the first Monday of November. (24) Most states host their delegation of electors in a statewide convention held after the general election for the presidency, when the actual vote for president is held. (25)

    On election day, voters in most states fill out a "short ballot," which only displays the political candidates' names--not the name of the elector who ultimately casts a vote on their behalf. (26) It gets even more bizarre: each ballot cast in a presidential election is actually cast for an elector. (27) Therefore, using the "short ballot" allows voters to mistakenly assume that their votes are cast directly for a presidential candidate and not for a nameless elector. (28)

    Since the ratification of the Twelfth Amendment, which changed the way the president and vice president are elected, states have adopted various measures to prevent electors from voting for a presidential candidate who did not win the statewide election. (29) An elector who ignores the people and votes based on their sincere belief is called a "faithless elector." (30) To avoid the menace of the "faithless elector," nearly every state follows a winner-take-all system, whereby the party that receives the most votes in a general statewide election receives all of a state's electoral votes. (31) In theory, a winner-take-all system should neutralize the unpredictability that "faithless electors" pose to the election system because it should remove the electors' choice in the matter. (32) Such efforts to bind electors' votes to the results of statewide elections raised vexing constitutional questions because the Constitution's express language prescribes that electors use ballot votes to elect the president, which has been interpreted to mean that electors ought to be afforded some discretion when executing their duties. (33)

    Historically, the process of selecting members of the Electoral College has been neither transparent nor meritocratic. (34) Often, the only qualification an elector must possess is they not be an elected official at the time of the selection. (35) Because of this relatively low standard, seats in the Electoral College usually get awarded to members of a dominant political party. (36)

    In its operation, the Electoral College creates two different types of states in any presidential election: swing states and safe states. (37) This simple distinction reflects two problems: first, the Electoral College imposes a structural incentive on voters to not vote in presidential elections if a voter is registered to vote in a safe state. (38) This odd incentive structure means that the Electoral College values votes cast in swing states more than votes cast in safe states. (39) Second, because a state's electoral vote count is based on the size of its congressional delegation, votes cast in the least populous states count more than votes cast in more populous states. (40) This latter inequity is revealed most profoundly when the Electoral College results seem to undermine democracy and a winning presidential candidate loses the popular vote yet wins the Electoral College. (41) In total, the Electoral College produced this result in five of the fifty-eight presidential elections in history, or about 8.6% of the time. (42)

    It is easy to question why such an idiosyncratic, arguably undemocratic institution was ever adopted, much less how it survived into the present day. (43) The most plausible explanation for its adoption seems to be one of political necessity. (44) with their time short, and the Constitutional Convention split between dueling proposals for how to elect the president, it is likely that the Framers compromised between the most popular proposals for the sake of unity. (45) Yet its peculiarities have not gone unnoticed nor unchallenged: in 1969, the House of Representatives passed an ill-fated resolution that would have abolished the Electoral College and instituted a direct election for the presidency. (46) Recently, another proposal, The National Popular Vote Interstate Compact, has gained traction among states. (47) If adopted, it would require members of the Electoral College to vote for the presidential candidate who won the national popular vote. (48)

    1. Election Statutes: The Federal Election Defense Strategy

      The Federal Constitution's Article I and II delegates authority to Congress to administer federal elections and to states to administer state elections. (49) Federal jurisdiction can be triggered in a mixed election if candidates to both federal and state office appear on the same ballot. (50) To vote in a federal election, a person must be at least eighteen years of age; a United States citizen; and meet any qualification imposed by the state where the person resides. (51)

      To regulate federal elections, Congress enacted 52 U.S.C.S. [section] 10307 ("[section] 10307"), which penalizes a person with a fine or jail time if that person "knowingly or willingly.. .pays or offers to pay or accepts payment.. .for voting." (52) To prosecute a person for violating [section] 10307, the government is not required to prove a defendant's specific intent or that actual corruption (i.e. vote buying) necessarily took place--just that the defendant's activity exposed the election to the risk of fraud. (53) in United States v. Carmichael, the Fourth Circuit held a defendant violated [section] 10307 by just offering to buy a vote because exposing federal election to the mere risk of corruption triggers the statute's protections. (54) Further, in United States v. Bowman, the Fifth Circuit upheld a defendant's conviction under [section] 10307 because "the fact that the person making the payment did not intend to influence the federal...

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