Figure out if the platform must be neutral or if it can promote particular candidates

[sbuss]

The 9th circuit ruling seems to say that the matchmaking mechanism itself, regardless of anything else, is protected speech. However, one of the factors in their decision was that the websites also provided other useful information like polling results, as well as general advocacy for vote swapping and for preferred candidates.

A loose reading of the ruling might suggest that this is protected only if the website also promotes a particular candidate, as was the case with voteswap2000.com:

Section I.A, paragraph 2

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.

Section III.B.1.4

[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.

Section III.B.1.5

[5] As Appellants argue, the vote-swap mechanisms also expressed a reasonably clear message of support for third- 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.

footnote 9, referenced in the above paragraph:

Voteswap2000.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

Section III.B.1.6

[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.

Section III.B.1.7

[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.

Section III.B.1.8

[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. [...] 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

I believe that these sections clearly state that a vote swapping platform need not be impartial, and that only allowing swaps for preferred candidates is protected speech.

I'd still like a lawyer's opinion on this, but I'm pretty sure any worries I have around not being impartial are unfounded.

[sbuss]

Declaring this one in favor of partisanship. Website is Clinton/Johnson swaps only now.