. To save you the trouble, here is the opinion:
FISHER, Circuit Judge:
The 2000 presidential election was one of the closest in our
nation’s history. Polls in the weeks before election day
showed a statistical dead heat, see Election 2000, http://
www.pollingreport.com/2000.htm#TRIAL, and George W.
Bush eventually prevailed even though Al Gore received a
plurality of the national popular vote. The 2000 election also
featured third-party candidates on both the left and right ends
of the political spectrum: respectively, Green Party nominee
Ralph Nader and Reform Party nominee Pat Buchanan.
Although Nader and Buchanan ultimately combined to
receive only 3.1 percent of the national popular vote, their
importance was magnified by the closeness of the election.
Bush and Gore supporters worried that so-called “swing
9343 PORTER v. BOWEN
states” might be tipped one way or another by votes for thirdparty
candidates. See, e.g., James Dao, Democrats Hear
Thunder on Left, and Try To Steal Some of Nader’s, N.Y.
Times, Oct. 25, 2000, at A1. The public’s attention also
became particularly focused on the peculiarities of the American
electoral system, under which small numbers of thirdparty
votes can prove decisive in closely contested states
because of their winner-take-all rules for the allocation of
presidential electors, and a candidate can win the presidency
despite losing the national popular vote. See, e.g., Michael
Kranish, Electoral College Count Looming Larger This Year,
Boston Globe, Oct. 26, 2000, at A30. Winner-take-all systems
allocate all of a state’s electoral votes to the candidate who
receives the most popular votes in that state, even if his share
of the vote is less than an outright majority. Almost all states
employ this system; only two, Maine and Nebraska, allocate
electoral votes on a district-by-district basis.
It was in this highly charged political atmosphere that
Appellants created two websites, voteswap2000.com and
votexchange2000.com, that encouraged people to “swap”
their votes and provided email-based mechanisms for doing
so. The vote-swap mechanisms enabled third-party supporters
in a swing state such as Florida or Ohio to agree to be paired
with major-party supporters in a “safe state” such as Massachusetts
or Texas, whereby the swing-state users would promise
to vote for the major-party candidate and, in exchange, the
safe-state users would promise to vote for the third-party candidate.
The point of the swaps, at least when agreed to by
Nader and Gore supporters, was to improve Gore’s odds of
winning the Democratic-pledged electors in the swing state
without reducing Nader’s share of the national popular vote
(which needed to exceed five percent in order to qualify his
party for federal funding in future elections).
Four days after their website began operation, the owners
of voteswap2000.com were threatened with criminal prosecution
by then-California Secretary of State, Bill Jones, for
9344 PORTER v. BOWEN
alleged violations of various state election and penal code
provisions. They immediately disabled the website’s voteswapping
mechanism, as did the owners of votexchange2000.
com upon learning about that threatened prosecution.
Shortly thereafter, Appellants filed this action, alleging
that Jones’ threatened prosecution violated the First Amendment
and the dormant Commerce Clause and exceeded the
scope of his authority under California’s election code; they
sought damages as well as injunctive and declarative relief.
The district court twice found this case to be moot — most
recently because of an informal letter from former Secretary
of State Kevin Shelley to the California legislature asking for
clarification of the state election code provisions. Because the
letter does not assure that California will not threaten to prosecute
vote-swapping websites in the future, we conclude that
this appeal is not moot. On the merits, we hold that Jones violated
Appellants’ First Amendment rights. The websites’
vote-swapping mechanisms as well as the communication and
vote swaps they enabled were constitutionally protected.
Although California certainly has valid interests in preventing
election fraud and corruption, and perhaps in avoiding the
subversion of the Electoral College, these interests did not
justify the complete disabling of the vote-swapping mechanisms.
Because we conclude that Jones’ actions were not sufficiently
tailored to advance the State’s legitimate interests,
we do not reach Appellants’ further claims that those actions
were an unconstitutional prior restraint, violated the dormant
Commerce Clause and were ultra vires under state law.
Finally, we hold that Jones is entitled to qualified immunity
from damages because the constitutionality of halting vote
swapping was not clearly established in 2000. The district
court’s decision is therefore affirmed in part and reversed in
part.
9345 PORTER v. BOWEN
I. BACKGROUND
A. Factual History
On October 26, 2000, less than two weeks before the
upcoming national presidential election, William J. Cody created
a website called voteswap2000.com. The website’s selfprofessed
goal was “[t]o maximize the percentage of the popular
vote that Nader receives, yet allow Gore to win the
national election.” To this end, the website contained links to
various articles discussing the 2000 election and urging people
to swap votes so that Gore would become President and
Nader would receive at least five percent of the popular vote.
More relevant here, the website also included a matching system
that put people who described themselves as “Nader voters
in . . . swing states” in e-mail contact with people who
described themselves as “Gore voters in blow-out states.”
Once paired, the individuals could exchange e-mails and
agree to trade their votes. As the website put it, “the original
Gore voter will vote for Nader, boosting his national popular
totals, while the Nader voter will vote for Gore, which will
hopefully prevent a Bush victory in that state.”
Only swing-state Nader supporters and safe-state Gore supporters
were intended to swap votes on voteswap2000.com.
States were categorized based on recent polling data, and people
who did not identify themselves as swing-state Nader supporters
or safe-state Gore supporters could not be paired with
other users.1 However, voteswap2000.com did not seek to
verify any person’s state (or even country) of residence, nor
could the website prevent people from being dishonest about
1Users who identified themselves as being from states that were only
leaning toward Bush or Gore (Georgia, Kentucky, Louisiana, North Carolina
and Ohio for Bush; California, Delaware, Illinois and New Jersey for
Gore) could not swap votes on voteswap2000.com, nor could users from
states where Nader was not on the ballot (e.g., Oklahoma, North Carolina)
or that allocated their electoral votes on a district-by-district basis (Maine
and Nebraska).
9346 PORTER v. BOWEN
their voting intentions or swapping votes multiple times by
entering multiple e-mail addresses.2 Because of these limitations,
voteswap2000.com suggested that “[i]t is ideal to swap
with someone you know and trust,” and recommended that
anyone who decided to employ its vote-swapping mechanism
“[u]se your own good judgement [sic] to determine if the person
you are matched with is legitimate, and be aware that
some people will try to abuse this system.” A separate page
within the website, entitled “A Word of Caution,” instructed
users, “[i]f at any stage of this process something doesn’t feel
right, we suggest you stop and not continue.”
In total, 5,041 people were matched by the
voteswap2000.com database. It is unknown, however, how
many Nader and Gore votes were actually swapped after users
were paired. Given secret balloting, whether either or both of
the parties to a vote-swapping agreement followed through on
their commitments could not be verified. There was therefore
no assurance for users of voteswap2000.com that their counterparts
voted in the manner they promised beyond the counterparts’
word. As the website told paired individuals,
“remember that this is just a friendly agreement, and you are
taking their word that they will follow through.”
On October 23, 2000, Alan Porter and Anand Ranganathan
separately created a website called votexchange2000.com.
Like voteswap2000.com, votexchange2000.com explained the
dilemma facing third-party supporters in swing states, and
advocated a vote-swapping solution whereby “[v]oters in a
swing state who wish to vote for a third party candidate could
swap their vote with voters in ‘safe states’ who would normally
vote for a leading party candidate.” Also as with
voteswap2000.com, users of votexchange2000.com were
2The website did state that “[w]e will do our best to eliminate obviously
fake or multiple e-mail addresses,” but there is no indication that its owners
ever took action to stop such fraud or that they had the technical capacity
to do so.
9347 PORTER v. BOWEN
given the e-mail address of an appropriate partner after identifying
their own state of residency and voting intentions; at
that point, “these two people [could] contact each other and
satisfy each other that they [could] trust each other to vote the
other’s preferences.”3 However, unlike voteswap2000.com,
votexchange2000.com was not intended solely to match
swing-state Nader supporters with safe-state Gore supporters;
instead, any third-party supporter in a swing state could be
matched with an appropriate major-party supporter in a safe
state. Finally, votexchange2000.com included a warning that
“[t]here is no way to be absolutely definitely certainly 100%
sure” that a vote swap was actually consummated. While
“trust[ing] in the innate goodness of people,” the website recommended
that users “take some reasonable measures to
insure that you could trust the other person.”
On October 30, 2000, four days after voteswap2000.com
began operation (and eight days before the election), the website’s
owners received a letter from Bill Jones, then Secretary
of State of California, informing them that their site was “engaged
in criminal activity.” The letter continued:
Your website specifically offers to broker the
exchange of votes throughout the United States of
America. This activity is corruption of the voting
process in violation of Elections Code sections
18521 and 18522 as well as Penal Code section 182,
criminal conspiracy. . . . The right to free and fair
3The provision of e-mail addresses to users of votexchange2000.com
was not necessarily instantaneous. Rather, “[a]s soon as [the website’s
database found] a voter with complementary voting preferences, [it would]
send out email to both people telling them about each other.”
Votexchange2000.com also did not provide as much detail as
voteswap2000.com about who was eligible to use its vote-swapping mechanism.
It merely stated that “[i]f we think that [people who identified their
state of residency and voting intentions] could make a difference by
exchanging their vote, we ask for their email address and store it in our
database.”
9348 PORTER v. BOWEN
elections is a cornerstone of American democracy.
Any person or entity that tries to exchange votes or
brokers the exchange of votes will be pursued with
the utmost vigor . . . . As the Chief Elections Officer
of the State of California, I demand that you end this
activity immediately. If you continue, you and anyone
knowingly working with you may be criminally
prosecuted to the fullest extent of the law.
Immediately after receiving Jones’s letter, the owners of
voteswap2000.com disabled their website’s vote-swapping
mechanism, barred Internet users outside California from
accessing the website, posted a notice on the website about
what had happened and e-mailed all people who had been
matched about the potential illegality of vote swapping.4
These actions “satisfactorily resolve[d]” the issue as far as
Jones was concerned. Even though they did not receive an
analogous letter, the owners of votexchange2000.com also
disabled their website’s vote-swapping mechanism as soon as
they found out about the voteswap2000.com letter. Both websites’
owners claim that the threat of prosecution was stressful
and frightening; Cody, in particular, alleges that he developed
back problems and had to visit a chiropractor shortly after
receiving Jones’ letter.
Voteswap2000.com was the only website that Jones threatened
with prosecution. Votexchange2000.com was never
brought to Jones’ attention before it ceased operation, though
its vote swapping mechanism was very similar to that of
voteswap2000.com.5 No action was taken against websites
4The screening of non-Californians may have been done by ascertaining
the Internet Protocol (“IP”) addresses of visitors to voteswap2000.com,
but the record is not clear on this point. Cf. Yahoo! Inc. v. La Ligue Contre
Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1246 (9th Cir. 2006) (IP
addresses provide users’ geographical location in most but not all cases).
5Because of the similarities between the websites’ vote-swapping mechanisms,
as well as the fact that the owners of votexchange2000.com dis-
9349 PORTER v. BOWEN
that advocated vote swapping but did not actually include
vote-swapping mechanisms. Websites that were the subject of
complaints were reviewed by the Secretary of State “on a
case-by-case basis, with each review process being very fact
intensive.”
B. Procedural History
Cody, Porter, Patrick Kerr and Steven Lewis
(“Appellants”) filed the present lawsuit on November 2, 2000
(five days before the presidential election). Kerr is a California
citizen who supported Nader but was worried about contributing
to a Bush victory in his state; Lewis is a
Massachusetts citizen who supported Gore but would have
considered swapping his vote with a swing-state Nader supporter.
Both Kerr and Lewis were interested in using the voteswapping
mechanisms offered by voteswap2000.com and
votexchange2000.com, but were unable to do so after those
mechanisms were disabled. Appellants’ complaint sought
damages as well as declaratory and injunctive relief. Jones
was sued for damages in his individual capacity, whereas
Debra Bowen, California’s current Secretary of State, is a
defendant in her official capacity. Given the turnover in the
office of the Secretary of State, we refer to Appellees as “Secretary”
unless the context requires naming the particular
incumbent.
The district court initially denied Appellants’ application
for a temporary restraining order that would have allowed
abled its mechanism as soon as they found out about the threatened
prosecution of the owners of voteswap2000.com, we state as shorthand
throughout this opinion that Jones threatened both websites with prosecution.
It seems clear that, had votexchange2000.com been brought to his
attention, Jones would have concluded that it too “offer[ed] to broker the
exchange of votes throughout the United States.” Jones notably does not
argue that he would not have threatened to prosecute the owners of votexchange2000.
com had he known about their website.
9350 PORTER v. BOWEN
them to continue operation of their websites until the election.
The court subsequently dismissed Appellants’ damages claim
on the ground that they had failed to satisfy the heightened
pleading standard for constitutional tort actions, and stayed
their claims for prospective relief under the abstention doctrine
of R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496
(1941). We reversed the district court in a published decision.
See Porter v. Jones, 319 F.3d 483 (9th Cir. 2003) (Porter I).
We held that this case was not moot, that it was ripe for decision,
that the Eleventh Amendment barred neither Appellants’
claims for prospective relief nor their damages claims against
Jones in his individual capacity and that Pullman abstention
was inappropriate. See id. at 489-93.
Notwithstanding our decision in Porter I, the district court
on remand granted summary judgment for the Secretary on
Appellants’ claims for prospective relief on the ground that
those claims had become moot. The district court relied on a
new letter from then-Secretary of State Kevin Shelley to then-
Speaker of the Assembly Herb Wesson. In that letter, Shelley
“request[ed] legislative clarification” of the state Election
Code provisions that his predecessor, Jones, had invoked
against the operators of voteswap2000.com, citing the “general
nature of the language of these sections, and the constitutional
issues implicated here.” “Until such legislative
clarifications are made,” Shelley added, “I will not seek to
prevent the operation of websites such as voteswap2000.com
and votexchange2000.com.” According to the district court,
the Shelley letter “clearly and unequivocally indicated that the
laws will not be enforced in the same manner against future
conduct by Plaintiffs or others until the legislature provides
further clarification.” It was therefore “inappropriate” for the
court to grant injunctive relief, because there was no “showing
that there exists a present, existing and ongoing prohibition
against Plaintiffs’ activities.”
In a separate order, the district court granted summary
judgment for Jones on Appellants’ damages claims. The court
9351 PORTER v. BOWEN
ruled that Jones was entitled to qualified immunity because
“the law regarding the constitutionality of prohibiting internet
voteswapping is far from clearly established.” The court
added that Jones’ position that sections 18521 and 18522 of
the California Election Code applied to the activities of
voteswap2000.com and votexchange2000.com was “objectively
reasonable in light of long-established Supreme Court
authority and the potential of such trading to corrupt the elections
process.” The court also noted that the secretaries of
state of two other states had reached the same conclusion as
Jones about the applicability of vote-buying statutes to websites
facilitating vote-swapping.
Judgment was entered in March 2006 and Appellants
timely appealed.
II. STANDARD OF REVIEW
A district court’s grant of summary judgment is reviewed
de novo. Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir.
1989). “Viewing the evidence in the light most favorable to
the non-moving party, we must determine whether there are
any genuine issues of material fact, and whether the district
court correctly applied the relevant substantive law.” Id. Here
neither party claims that there is a genuine issue of material
fact; we therefore need review only the district court’s application
of the relevant substantive law.
III. DISCUSSION
A. Mootness
[1] We address at the outset the district court’s ruling,
based entirely on the Shelley letter, that Appellants’ claims
for prospective relief are moot. See Coral Constr. Co. v. King
County, 941 F.2d 910, 927 (9th Cir. 1991) (“Ordinarily, a
contention of mootness must be resolved as a threshold matter,
since the court would lack jurisdiction to decide a moot
9352 PORTER v. BOWEN
case.”). It has long been established that the “[m]ere voluntary
cessation of allegedly illegal conduct does not moot a case; if
it did, the courts would be compelled to leave [t]he defendant
. . . free to return to his old ways.” United States v. Concentrated
Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)
(second alteration in original; internal quotation marks omitted).
Only if “subsequent events [have] made it absolutely
clear that the allegedly wrongful behavior could not reasonably
be expected to recur,” id., and “interim relief or events
have completely and irrevocably eradicated the effects of the
alleged violation,” Los Angeles County v. Davis, 440 U.S.
625, 631 (1979), may a case be found moot because the
defendant has ceased the complained-of conduct. Moreover,
the burden of demonstrating mootness is “heavy” and must be
carried by the party claiming that the case is moot. See Coral
Construction, 941 F.2d at 927-28.
[2] We conclude that the Secretary fails to carry the “heavy
burden” of establishing that it is “absolutely clear” that California
will not threaten to prosecute the owners of
voteswap2000.com and votexchange2000.com if they create
vote-swapping websites in the future.6 To begin with, the
Shelley letter does not suggest that it is binding on the Secretary
of State, nor would a letter addressed to the Speaker of
the Assembly typically create legal obligations. Shelley also
no longer occupies the position of Secretary of State, and the
current incumbent, Secretary Bowen, could initiate the prosecution
of vote-swapping websites at her discretion. Cf.
Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d
1260, 1274 (9th Cir. 1998) (“Defendants have neither asserted
nor demonstrated that they will never resume [the
complained-of conduct] . . . .”) (emphasis added). Finally, the
Secretary has maintained throughout the nearly seven years of
6Cody and Porter have stated that they will set up vote-swapping websites
analogous to voteswap2000.com and votexchange2000.com if they
will not again be threatened with prosecution for doing so. Kerr and Lewis
have also expressed their interest in using such websites in the future.
9353 PORTER v. BOWEN
litigation in this case that Jones had the authority under state
law to threaten Appellants with prosecution in 2000 — a position
in tension with the Shelley letter’s statement that the relevant
statutory provisions are drafted in general terms and
require legislative clarification. Cf. Bourgeois v. Peters, 387
F.3d 1303, 1309 (11th Cir. 2004) (case not moot where “[t]he
City has argued for over two years that its search policy is
constitutional . . . in the face of ongoing litigation”).
[3] We therefore reverse the district court’s ruling that
Appellants’ claims for prospective relief were mooted by the
Shelley letter. Accordingly, we proceed to the merits of
Appellants’ appeal.7
B. First Amendment
Appellants principally contend that Jones’ threatened criminal
prosecution of the owners of voteswap2000.com and
votexchange2000.com was not sufficiently tailored to the
advancement of the State’s legitimate interests and thus
unlawfully burdened constitutionally protected speech and
conduct. Because we agree with Appellants, we do not reach
their further arguments that Jones’ actions were an unconstitutional
prior restraint and violated the dormant Commerce
Clause. We also do not address whether Jones’ actions
exceeded the scope of his authority under California state
election law; even if they did, we would still need to decide
7For several reasons, we need not remand to the district court to address
the merits in the first instance. There are no disputed factual matters at this
point; neither party has requested a remand; we are mindful of Appellants’
desire for a decision in time for the next presidential election; the district
court touched on the merits in its qualified immunity ruling (though not
at great length); and, most significantly, we must reach the merits in order
to decide whether Jones is entitled to qualified immunity. See Saucier v.
Katz, 533 U.S. 194, 201 (2001) (instructing courts conducting a qualified
immunity inquiry first to determine whether a constitutional violation
occurred, and only thereafter whether the relevant law was clearly established).
9354 PORTER v. BOWEN
their constitutionality in order to determine whether Jones is
entitled to qualified immunity. See Saucier, 533 U.S. at 201.
1. Protected speech or conduct
[4] The first issue we must resolve is whether Jones’
actions burdened any constitutionally protected speech or
conduct. That is, did Appellants have a First Amendment
interest in voteswap2000.com and votexchange2000’s voteswapping
mechanisms or the communication and vote swaps
that the mechanisms enabled?8 Beginning with the voteswapping
mechanisms themselves, we hold that they are entitled
to at least some First Amendment protection. The mechanisms
conveyed useful information to users by providing
them with the e-mail addresses of appropriate counterparts
with whom they could swap votes. Voteswap2000.com also
offered data about states’ political leanings, ballot situations
and electoral systems as soon as users of the mechanism identified
their states of residency. See Village of Schaumburg v.
Citizens for a Better Env’t, 444 U.S. 620, 632 (1980)
(“communication of information” is “speech interest[ ] . . .
within the protection of the First Amendment”); Giebel v. Sylvester,
244 F.3d 1182, 1187 (9th Cir. 2001) (“[B]ecause Giebel’s
handbill was designed to convey information, it
constitutes a form of speech protected by the First Amendment.”).
[5] As Appellants argue, the vote-swap mechanisms also
expressed a reasonably clear message of support for third-
8Appellants plainly had a First Amendment interest in aspects of their
websites other than the vote-swapping mechanisms. These other aspects
provided information about the 2000 election and expressed Appellants’
support for vote swapping, third parties and (in voteswap2000.com’s case)
Nader and Gore. We limit our inquiry, however, to the vote-swapping
mechanisms (and the communication and vote swaps they made possible)
because they were the focus of Jones’ threatened prosecution. Websites
that advocated vote swapping without actually enabling visitors to swap
votes were never targeted.
9355 PORTER v. BOWEN
party candidates and concern that winner-take-all systems
might allow a candidate to receive all of a state’s electoral
votes even though he was opposed by a majority of the state’s
voters (as measured by the popular vote).9 Any person who
sought access to the mechanisms would have realized — even
turning a blind eye to the text and hyperlinks that surrounded
them on the websites — that their creators supported third
parties and were seeking to create options that were otherwise
foreclosed by most states’ electoral procedures. A user of
voteswap2000.com’s mechanism who self-identified as a
safe-state Gore supporter, for example, would have been
asked to provide his or her name and e-mail address, and
would have seen the following language on the online sign-up
page: “You are a Gore supporter from a blow-out state who
will agree to vote for Nader in exchange for someone in a
swing state voting for Gore.” This statement certainly communicated
voteswap2000.com’s pro-Nader, pro-Gore position,
as well as its fear that Bush would win swing states’
electoral votes despite the opposition of a majority of the
states’ voters. See Spence v. Washington, 418 U.S. 405, 410-
11 (1974) (expressive conduct requires “intent to convey a
particularized message” and “likelihood [that is] great that the
message would be understood by those who viewed it”); cf.
Vlasak v. Superior Court, 329 F.3d 683, 690-91 (9th Cir.
2003) (protester’s wood-and-metal bull hook at circus was
expressive conduct); Colacurcio v. City of Kent, 163 F.3d
545, 549-50 (9th Cir. 1998) (same for nude dancing at nightclub).
10
9Voteswap2000.com’s message was even more specific. Because its
vote-swapping mechanism permitted only self-identified safe-state Gore
supporters to trade votes with swing-state Nader supporters, the message
conveyed was support for Nader (as opposed to third parties generally)
and for Gore.
10The Supreme Court’s recent decision in Rumsfeld v. Forum for Academic
& Institutional Rights, Inc. (FAIR), 126 S. Ct. 1297 (2006), is not
to the contrary. The Court held in FAIR that law schools’ exclusion of military
recruiters from campus was not expressive conduct because “[a]n
9356 PORTER v. BOWEN
[6] Looking next at the communication and vote swaps that
the mechanisms enabled between paired users, we agree with
Appellants that they too constituted protected speech or conduct.
11 As discussed above, after being matched by the websites’
vote-swapping mechanisms, users were encouraged to
contact each other by e-mail. It is reasonable to assume that
the users’ ensuing messages would have concerned their political
preferences and, if the users reached a meeting of the
minds, resulted in agreements to swap votes on election day.
This kind of communication is clearly protected by the First
Amendment. “[T]here is practically universal agreement that
a major purpose of that Amendment was to protect the free
discussion of governmental affairs,” including “discussions of
candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966); see
also Meyer v. Grant, 486 U.S. 414, 422 (1988) (“[I]nteractive
communication concerning political change . . . is appropriately
described as ‘core political speech.’ ”); Buckley v. Valeo,
424 U.S. 1, 14 (1976) (“Discussion of public issues and
observer . . . has no way of knowing whether the law school is expressing
its disapproval of the military, all the law school’s interview rooms are
full, or the military recruiters decided for reasons of their own that they
would rather interview someplace else.” Id. at 1311. Here, in contrast, an
observer who came across the websites’ vote-swapping mechanisms
would in all likelihood have discerned their message of support for third
parties, concern about elections featuring multiple candidates and conducted
under a winner-take-all regime and (in voteswap2000.com’s case)
support for Nader and Gore.
11Cody and Porter, the owners of voteswap2000.com and votexchange2000.
com, may not have standing to assert this First Amendment
interest since there is no indication that they planned to use their websites’
vote-swapping mechanisms. However, Kerr and Lewis, both of whom
were interested in swapping votes through the websites but were unable
to do so after the vote-swapping mechanisms were disabled, plainly do
have the requisite standing. See Buono v. Norton, 371 F.3d 543, 548 (9th
Cir. 2004) (noting that in a federal case involving multiple plaintiffs,
“once the court determines that one of the plaintiffs has standing, it need
not decide the standing of the others”) (quoting Leonard v. Clark, 12 F.3d
885, 888 (9th Cir. 1993)) (internal quotation marks omitted).
9357 PORTER v. BOWEN
debate on the qualifications of candidates are . . . . afford[ed]
the broadest protection . . . .”).
[7] Any agreements that paired users may have reached
about swapping votes were also constitutionally protected.
Such agreements — like the e-mails that preceded them —
involved people’s opinions on “campaigns for political
office,” which are precisely where the First Amendment “has
its fullest and most urgent application.” Monitor Patriot Co.
v. Roy, 401 U.S. 265, 272 (1971). Agreements whereby a
swing-state third-party supporter and safe-state major-party
supporter pledged to trade votes also would have expressed
those voters’ (1) support for a particular major-party candidate
or (2) support for a particular third-party candidate, as
well as (3) their concern that unless action was taken, the
winner-take-all electoral system could result in the will of the
swing state’s popular-vote majority being overridden.
[8] Whatever the wisdom of using vote-swapping agreements
to communicate these positions, such agreements
plainly differ from conventional (and illegal) vote buying,
which conveys no message other than the parties’ willingness
to exchange votes for money (or some other form of private
profit). The Supreme Court held in Brown v. Hartlage, 456
U.S. 45, 55 (1982), that vote buying may be banned “without
trenching on any right of association protected by the First
Amendment.” Vote swapping, however, is more akin to the
candidate’s pledge in Brown to take a pay cut if elected,
which the Court concluded was constitutionally protected,
than to unprotected vote buying. Like the candidate’s pledge,
vote swapping involves a “promise to confer some ultimate
benefit on the voter, qua . . . citizen[ ] or member of the general
public” — i.e., another person’s agreement to vote for a
particular candidate. Id. at 58-59. And unlike vote buying,
vote swapping is not an “illegal exchange for private profit”
since the only benefit a vote swapper can receive is a marginally
higher probability that his preferred electoral outcome
will come to pass. Id. at 55 (emphasis added); cf. Marc John
9358 PORTER v. BOWEN
Randazza, The Other Election Controversy of Y2K: Core
First Amendment Values and High-Tech Political Coalitions,
82 Wash. U. L.Q. 143, 221 (2004) (“There can be no . . . serious
assertion, that anyone entered into a vote-swap arrangement
for private profit or any other form of enrichment.”).
Both the websites’ vote-swapping mechanisms and the
communication and vote swaps that they enabled were therefore
constitutionally protected. At their core, they amounted
to efforts by politically engaged people to support their preferred
candidates and to avoid election results that they feared
would contravene the preferences of a majority of voters in
closely contested states. Whether or not one agrees with these
voters’ tactics, such efforts, when conducted honestly and
without money changing hands, are at the heart of the liberty
safeguarded by the First Amendment. Cf. Brown, 456 U.S. at
52-53; Buckley, 424 U.S. at 14-15; Monitor Patriot, 401 U.S.
at 271-72; Mills, 384 U.S. at 218-19.12
We do not decide, however, whether the vote-swapping
mechanisms and the communication and vote swaps they
made possible were pure speech or expressive conduct. The
distinction between the two concepts is often difficult to discern.
See, e.g., FAIR, 126 S. Ct. at 1308-11 (considering law
schools’ policies toward military recruiters first as speech and
then in the alternative as expressive conduct). It is also a distinction
that makes no practical difference here, because our
conclusion would be the same under the strict scrutiny that
applies to restrictions of pure speech as it is under the intermediate
scrutiny applicable to the burdening of expressive
conduct that we employ below.13
12The Secretary essentially conceded at oral argument that agreements
between individuals to swap votes, when made without the use of a website
or other enabling mechanism, are not illegal under California law. If
this is so, the rationale for criminalizing vote swap mechanisms becomes
even more problematic.
13We thus do not address Appellants’ contention that their “websites
engaged in and facilitated [pure] political speech and association” and
9359 PORTER v. BOWEN
2. Intermediate scrutiny under United States v. O’Brien
[9] A government action that burdens expressive conduct is
subject to intermediate scrutiny, and is upheld if (1) “it is
within the constitutional power of the Government”; (2) “it
furthers an important or substantial governmental interest”;
(3) “the governmental interest is unrelated to the suppression
of free expression”; and (4) “the incidental restriction on
alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.” United States v.
O’Brien, 391 U.S. 367, 377 (1968). The government “bears
the burden of proving that the elements of the O’Brien test are
satisfied.” Preferred Commc’ns, Inc. v. City of Los Angeles,
754 F.2d 1396, 1406 n.9 (9th Cir. 1985). Applying this framework,
we hold that the State’s legitimate interests did not support
Jones’ threatened criminal prosecution of the owners of
voteswap2000.com and votexchange2000.com.14
hence were not merely expressive conduct. We also note that the Secretary
argues that the vote-swapping mechanisms were conduct rather than
speech without considering the possibility that they were protected expressive
conduct. Furthermore, the Secretary’s assertion that vote swapping is
constitutionally unprotected because it is allegedly illegal under California
law is a non sequitur. The constitutional status of a given activity is not
determined by its legality under state law; indeed, a statute that proscribes
a protected activity may for that reason be held unconstitutional.
14If we treated the vote-swapping mechanisms and the communication
and vote swaps that they enabled as speech rather than expressive conduct,
strict scrutiny would be applicable. See Meyer, 486 U.S. at 420-22 (limitation
on core political speech subject to “exacting scrutiny”); see also
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (election law that severely
restricts First Amendment rights subject to strict scrutiny); cf. Randazza,
supra, at 219 (“The secretaries of states’ actions . . . implicate core First
Amendment values to such an extent that strict scrutiny must apply.”);
John M. Rushing, Vote Swapping and Free Speech: Voice, Politics, and
Choice, 7 Tex. F. on C.L. & C.R. 73, 77 (2002) (same). Because Jones’
threatened prosecution of the websites’ owners fails to survive intermediate
scrutiny, it necessarily follows that it would also be invalid under strict
scrutiny.
9360 PORTER v. BOWEN
The Secretary asserts three interests to justify any alleged
burdening of Appellants’ protected activity: preventing corruption,
preventing fraud and preventing the subversion of the
Electoral College.15 Because the concepts of corruption and
fraud are related although distinct, we consider California’s
interest in preventing elections from being tainted by illicit
financial transactions under the corruption rubric, and its
interest in preventing deceptive campaign practices under the
fraud rubric. See Fed. Election Comm’n v. Nat’l Conservative
Political Action Comm. (NCPAC), 470 U.S. 480, 497 (1985)
(“The hallmark of corruption is the financial quid pro quo:
dollars for political favors.”); Buckley, 424 U.S. at 27 (“[T]he
appearance of corruption stem[s] from public awareness of
the opportunities for abuse inherent in a regime of large individual
financial contributions.”); see also Illinois ex rel.
Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612
(2003) (equating fraud with “public deception”). Regardless
of how they are categorized, these interests embody the Secretary’s
understandable unease, as chief elections officer of California,
with novel online applications that were perceived as
threatening state and national electoral procedures and
appeared to be susceptible to fraudulent activity.
Beginning with the first O’Brien prong, we have no doubt
that Jones had the constitutional authority to threaten the websites’
owners with prosecution. California’s police power
15The Secretary also hints at a fourth interest: preventing vote swapping
per se, even if carried out non-corruptly, non-fraudulently and on a small
scale. Such an interest, whether it is distinct or subsumed into the State’s
anti-corruption interest, is invalid given our conclusion above that vote
swapping is a constitutionally protected activity. Even under intermediate
scrutiny, the government’s interest in burdening expressive conduct must
be something other than a desire to impose that very burden. See O’Brien,
391 U.S. at 377 (“[T]he governmental interest [must be] unrelated to the
suppression of free expression . . . .”). Moreover, such a per se rule is
inconsistent with the Secretary’s concession at oral argument that individual
vote swaps carried out without the use of an enabling mechanism are
not unlawful. See n.8, supra.
9361 PORTER v. BOWEN
plainly authorizes state officials to send cease-and-desist letters
to websites that are believed to be in violation of an otherwise
valid statute, and to prosecute the websites’ owners for
their offenses. See United States v. Turkette, 452 U.S. 576,
587 n.9 (1981) (“States [are] free to exercise their police powers
to the fullest constitutional extent in defining and prosecuting
crimes within their respective jurisdictions.”).
[10] The second O’Brien prong, whether Jones’ actions furthered
important or substantial government interests, presents
a question with mixed answers. Preventing corruption and
preventing fraud have both been repeatedly recognized as
weighty government interests. See, e.g., Fed. Election
Comm’n v. Wisconsin Right to Life, Inc. (WRTL), 127 S. Ct.
2652, 2672 (2007) (WRTL) (“[T]he Court has long recognized
the governmental interest in preventing corruption and the
appearance of corruption in election campaigns.”) (internal
quotation marks omitted); Village of Schaumburg, 444 U.S. at
636 (“protecting the public from fraud” is “indeed [a] substantial”
interest) (internal quotation marks omitted). However,
as Appellants argue, no decision has ever recognized a
state’s interest in preventing the subversion of the Electoral
College, let alone characterized such an interest as important
or substantial. Cf. Williams v. Rhodes, 393 U.S. 23, 28-29
(1968) (rejecting Ohio’s asserted interest under art. II, 1 of
the Constitution in keeping minority parties off the presidential
ballot). In any event, we need not decide whether preventing
the subversion of the Electoral College is a legitimate
government interest because, as we discuss below, even if it
were, it was not furthered by Jones’ actions.
The third O’Brien requirement, that the state’s interests be
unrelated to the suppression of free expression, is easily satisfied
here. The prevention of fraud, corruption and Electoral
College subversion is conceptually distinct from the abridgement
of speech. Cf. R.A.V. v. City of St. Paul, Minn., 505 U.S.
377, 396 n.8 (1992) (“State’s compelling interest in preventing
. . . election fraud” is an “interest[ ] unrelated to the sup-
9362 PORTER v. BOWEN
pression of ideas”). Moreover, there is no indication here that
Jones threatened to prosecute Appellants because of their
political views, and the fact that he did not send cease-anddesist
letters to websites that advocated vote swapping but did
not include vote-swapping mechanisms suggests strongly that
his motivation was not the suppression of speech.
Finally, we examine separately each of the Secretary’s
three asserted interests to determine whether the fourth and
most important O’Brien prong was satisfied — that the incidental
restrictions on First Amendment freedoms be no
greater than is necessary to further those interests. We conclude
that the Secretary’s interests in preventing corruption
and preventing the subversion of the Electoral College were
not furthered at all by the threatened prosecution of the owners
of voteswap2000.com and votexchange2000.com, and that
the State’s anti-fraud interest was not addressed in a sufficiently
tailored manner.
[11] a. Corruption. Beginning with the State’s anticorruption
interest, we reiterate that we construe this interest
to encompass only the prevention of illicit financial transactions
such as the buying of votes or the contribution of large
sums of money to legislators in exchange for political support.
See WRTL, 127 S. Ct. at 2676 (Scalia, J., concurring in part
and concurring in the judgment); NCPAC, 470 U.S. at 497;
Buckley, 424 U.S. at 26-27. So defined, this interest was not
advanced by the threatened prosecution of the owners of
voteswap2000.com and votexchange2000.com. The websites
did not encourage the trading of votes for money, or indeed
for anything other than other votes. Votexchange2000.com
actually included a notation that “It is illegal to pay someone
to vote on your behalf, or even get paid to vote yourself. Stay
away from the money. Just vote” (emphasis in original). And
there is no evidence in the record, nor has the Secretary
argued, that any website users ever misused the voteswapping
mechanisms by offering or accepting money for
their votes.
9363 PORTER v. BOWEN
[12] b. Fraud. The state’s anti-fraud interest was furthered
by Jones’ threatened prosecution of the website owners.
At least three kinds of fraud could have been perpetrated
through those websites’ vote-swapping mechanisms. People
from other states (or even other countries) could have pretended
to be third-party swing-state supporters or major-party
safe-state supporters. Regardless of their location, people
could have used the websites’ vote-swapping mechanisms
multiple times, thus trading their one vote (or zero votes) for
several other votes. And even people who were truthful about
their location and who only swapped votes once could have
deliberately misrepresented their voting intentions. Threatening
Appellants’ websites with prosecution unless they disabled
the vote-swapping mechanisms thus served the State’s
anti-fraud interest for the obvious reason that none of the
above species of fraud could have been committed through
mechanisms that were no longer in operation.
[13] However, the Secretary has failed to demonstrate that
the burden imposed on constitutionally protected activity by
the disabling of the mechanisms was not “greater than [was]
essential to the furtherance of [the State’s anti-fraud] interest.”
O’Brien, 391 U.S. at 377. First, the Secretary has not
called our attention to, nor have we been able to locate, any
evidence in the record that fraud actually took place during
the brief period that the vote-swapping mechanisms were
operational. No website users came forward with either
admissions that they committed fraud or worries that their
counterparts misrepresented their state of residency or voting
intentions. The websites’ owners also did not notice any
suspicious online activity, such as the use of “obviously fake
or multiple e-mail addresses,” which voteswap2000.com
stated it would try to eliminate if it occurred.
[14] Second, as described above, both websites repeatedly
warned users that fraud was possible and advised them to take
steps to reassure themselves that they could trust their
matched counterparts. Voteswap2000.com told users to “[u]se
9364 PORTER v. BOWEN
your own good judgement [sic] to determine if the person
you are matched with is legitimate, and be aware that some
people will try to abuse this system.” Similarly,
votexchange2000.com recommended that users “take some
reasonable measures to insure that you could trust the other
person.” The Secretary has not explained why these warnings
were insufficient, or what kind of language (if any) would
have assuaged the State’s concerns.
[15] Third, the manner in which the vote-swapping mechanisms
operated reduced the opportunities for widespread
fraud. Any would-be fraudster would have had to exchange emails
and come to a vote-swapping agreement separately with
each intended victim. There was no way to “automate” the
fraud, that is, to agree to trade votes without first making email
contact and offering specific representations (even if
bogus) to the other party about the fraudster’s identity, location
and voting intentions.
[16] Lastly, the Secretary has failed to establish (or, indeed,
even to argue) that the State’s anti-fraud interest could not
have been advanced as effectively through less restrictive
means. Under our case law, it was the Secretary’s burden to
show that the potential types of fraud the Secretary suggests
might occur could not have been halted through measures less
burdensome than the complete disabling of the websites’
vote-swapping mechanisms. See Edwards v. City of Coeur
d’Alene, 262 F.3d 856, 863 (9th Cir. 2001); Preferred
Commc’ns, 754 F.2d at 1406 n.9. The Secretary, however, did
not attempt to make such a showing, even though it was the
Secretary who invoked the O’Brien framework to justify shutting
down the vote-swapping mechanisms. Given the
Supreme Court’s repeated admonishments that the government’s
interest in preventing fraud does not justify sweeping
restrictions on constitutionally protected activity, the Secretary’s
failure to establish that Jones’ actions were his only reasonable
recourse is fatal to the Secretary’s reliance on
O’Brien. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
9365 PORTER v. BOWEN
487 U.S. 781, 800 (1988) (“In contrast to the prophylactic,
imprecise, and unduly burdensome rule the State has adopted
to reduce its alleged donor misperception, more benign and
narrowly tailored options are available.”); Village of Schaumburg,
444 U.S. at 637 (“The Village’s legitimate interest in
preventing fraud can be better served by measures less intrusive
than a direct prohibition on solicitation.”); cf. NAACP v.
Button, 371 U.S. 415, 438 (1963) (“Broad prophylactic rules
in the area of free expression are suspect. Precision of regulation
must be the touchstone in an area so closely touching our
most precious freedoms.”) (internal citations omitted).
Our conclusion is bolstered by Appellants’ offer of at least
two suggestions for preventing fraud short of disabling the
websites’ vote-swapping mechanisms altogether, neither of
which was addressed by the Secretary. First, Appellants
pointed out that “[m]ore stringent warnings” about the danger
of fraud could have been posted on the websites, to even more
clearly alert users of the need to exercise good judgment in
trusting someone known only through the Internet. Second,
the State could have “pass[ed] a law that said you must be
who you say you are when you do this, you must be from the
state you say you’re from.” If those who utilized the voteswapping
mechanism had been required by law (or even simply
the websites) to prove their identity and residency before
they could have been matched with other users (perhaps by
providing information such as a driver’s license number or the
voter registration number that is typically listed on voter identification
cards), then the websites could have stopped users
from swapping votes multiple times or from misrepresenting
their state of residency. Although the record does not conclusively
demonstrate the feasibility or effectiveness of such verification
methods, it was the State’s burden to rebut
Appellants’ suggested lesser alternatives and the Secretary did
not do so.
[17] c. Electoral College. Finally, the State’s interest in
preventing the subversion of the Electoral College, assuming
9366 PORTER v. BOWEN
it to be a legitimate interest, was not furthered by Jones’
actions. As a technical matter, Appellants are correct that the
vote-swapping mechanisms did not enable users to cast their
votes in states in which they were not registered, nor could the
constitutionally prescribed arrangement for selecting the President
have been undermined by the mechanisms. More fundamentally,
the whole point of voteswap2000.com and
votexchange2000.com was to prevent the preferences of a
majority of a state’s voters from being frustrated by the
winner-take-all systems in place in most states. For example,
in a hypothetical swing state with 49 percent Bush supporters,
48 percent Gore supporters, and 3 percent Nader supporters
(all of whom we hypothesize preferred Gore to Bush), an
election conducted without vote swapping would have
resulted in a Bush victory even though he was not the first
choice of a majority of the state’s voters. However, if all the
Nader supporters had swapped their votes with Gore supporters
in safe states, then Gore — who was preferred by 51 percent
of the state’s voters to Bush — would have prevailed.
Such an outcome would not have represented a subversion of
the Electoral College, which would have continued to operate
precisely as set forth in the Constitution. It also would not
have undermined the state’s electoral system, which would
have still allocated all of the state’s electoral votes to the candidate
who received a plurality of the state’s popular vote. All
that the vote swapping would have done would have been to
offset the anomalies that its advocates believe can result when
more than two candidates face off in winner-take-all systems.
Cf. Rushing, supra, at 88 (“[I]t is doubtful that the electoral
college tenders a compelling state interest for ending vote
swapping.”).
[18] We therefore hold that Jones’ threatened prosecution
of the owners of voteswap2000.com and
votexchange2000.com was unconstitutional under the fourth
O’Brien prong. His actions severely burdened activity protected
by the First Amendment; after October 30, 2000, the
websites’ vote-swapping mechanisms were entirely disabled,
9367 PORTER v. BOWEN
and people were entirely unable to communicate or swap
votes through the mechanisms. Moreover, his actions did not
advance California’s interests in preventing corruption and
preventing the subversion of the Electoral College, and the
Secretary has failed to establish that the State’s anti-fraud
interest could not have been furthered as effectively through
measures less drastic than the complete disabling of voteswapping
mechanisms at issue here.16 We express no opinion
on whether less severe measures — such as the verification
methods suggested by Appellants — would pass muster under
O’Brien.
C. Qualified immunity
Appellants seek not only prospective relief from prosecution
on account of their websites’ vote-swapping mechanisms,
but also damages from Jones. Jones, in turn, argues that he is
entitled to qualified immunity. We have already addressed the
first element of the qualified immunity inquiry, namely
whether Jones violated Appellants’ constitutional rights,
which he did. See Saucier, 533 U.S. at 201. We therefore turn
to the second element of the qualified immunity inquiry —
whether the constitutionality under the First Amendment of
16Though Brown v. Hartlage, 456 U.S. 45 (1982), is not directly on
point because it involved candidate-voter rather than voter-voter communication,
it generally supports our conclusion. The Court held in Brown
that a state could not bar a candidate from promising voters that he would
take a pay cut if elected to office. While recognizing that “illegal
exchange[s] for private profit . . . may properly be prohibited,” id. at 55,
the Court made clear that most communication and negotiation surrounding
the exercise of the franchise cannot be banned. In the Court’s words,
“[t]he fact that some voters may find their self-interest reflected in a candidate’s
commitment does not place that commitment beyond the reach of
the First Amendment.” Id. at 56. In one respect, moreover, this case is easier
than Brown because it does not involve any financial self-interest whatsoever.
The voters in Brown could have expected to receive some (small)
pecuniary advantage from the promised salary-saving. Here, in contrast,
people agreed to swap votes without any promise at all of financial benefit.
9368 PORTER v. BOWEN
halting vote swapping was clearly established in 2000. See
Hope v. Pelzer, 536 U.S. 730, 741 (2002) (stating the “salient
question” as “whether the state of the law . . . gave respondents
fair warning that their [actions were] unconstitutional”);
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (holding
that a right is clearly established when its “contours . . . [are]
sufficiently clear that a reasonable official would understand
that what he is doing violates that right”).
[19] We conclude that the application of First Amendment
doctrine to vote swapping was not clearly established in 2000
(or, indeed, until our decision today). First, no court had ever
addressed the constitutionality of efforts to halt vote swapping
when Jones threatened Appellants with prosecution. Jones
therefore had no on-point decision to rely on when he
received complaints about Appellants’ websites. Second,
although it is true that “officials can still be on notice that
their conduct violates established law even in novel factual
circumstances,” Hope, 536 U.S. at 741, this case does not
involve the mere application of settled law to a new factual
permutation. To the contrary, we have had to wrestle with difficult
and unsettled questions about the First Amendment
interests implicated by vote swapping and the weight of the
countervailing interests asserted by the State. Finally, Jones
was not the only Secretary of State to determine that vote
swapping was illegal under state law; so too did his counterparts
in Oregon and Minnesota, on grounds similar to those
cited by Jones (though the Secretaries of State of Maine,
Michigan and Nebraska reached the opposite conclusion).
[20] Taking these considerations into account, we hold that
Jones is entitled to qualified immunity. He did not have “fair
warning” that his actions were unconstitutional, id. at 740, nor
would a “reasonable official” in his position have understood
that threatening the owners of vote-swapping websites with
prosecution constituted a violation of the First Amendment,
Anderson, 483 U.S. at 640.
9369 PORTER v. BOWEN
IV. CONCLUSION
We hold that this case is not moot. The Shelley letter did
not make it absolutely clear that California would not threaten
to prosecute the owners of vote-swapping websites in the
future. We further hold that Jones violated the First Amendment
when he threatened to prosecute the owners of
voteswap2000.com and votexchange2000.com. Both the websites’
vote-swapping mechanisms and the communication and
vote swaps that the mechanisms enabled were constitutionally
protected. The heavy burden Jones imposed on this protected
activity did not further the State’s interests in preventing corruption
and preventing the subversion of the Electoral College,
and the Secretary failed to establish that the State’s antifraud
interest could not have been advanced as effectively
through less severe measures. Nonetheless, we hold that Jones
is entitled to qualified immunity because the constitutionality
of halting vote swapping was not clearly established in 2000.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART AND REVERSED IN PART.
9370 PORTER v. BOWEN