It seems like it would be illegal to trade a vote for Hillary Clinton in one state for a vote for Jill Stein in another state. But there are apps and websites created to do just that, and Democrats in swing states who support Stein are eagerly trading their votes with Hillary supporters in non-swing states.

TrumpTraders.org is one of the sites. Spokesman Ricardo Reyes said as of Friday, the site had connected thousands of voters in Florida and Ohio, with a total of 20,000 users. The app #NeverTrump app reportedly hit 10,000 active users this past weekend.

Vote swapping was used in 2000 between voters supporting Al Gore and Ralph Nader, known as “Nader Traders.” The effort matched an estimated 35,000 voters nationwide. Florida determined the election, which Gore lost by 537 votes to George W. Bush. If just 538 more votes had been swapped in Florida, Gore would have won.

It is perfectly conceivable that vote swapping efforts this year will far surpass those in 2000, tipping the election to Clinton. There were no smartphone apps back in 2000, nor abundance of tech-savvy socialist Millennials looking for an alternative to Clinton. The owners of Trump Traders have laid out the numbers that third party candidates are polling in swing states, and believe there are enough available for swapping to tip the race. Polls don’t reflect the practice, since most vote swappers aren’t going to admit voting for the candidate they don’t like. Trump supporters do not appear to be engaging in the practice.

Vote Swapping Should Be Unconstitutional

Porter v. Bowen was a bad decision that circumvents the foundation of this country, allowing dishonest people to rig the vote.

Joshua Douglas, associate professor of law at the University of Kentucky College of Law, says it is legal because “there is no way to prove that both people went through with it.” There is also no exchange of value, allegedly. In Porter v. Bowen, a Ninth Circuit Court of Appeals panel held that vote swapping was protected by the First Amendment. The decision was authored by a Democrat, Judge Raymond C. Fisher. Written in 2007, he was well aware the practice is used primarily by Democrats.

Vote swapping is an extremely dishonest way to get around the foundations of our democracy laid out in the Constitution. Participants are essentially casting a vote in a state where they are not registered. It’s not even a guaranteed swap, because either voter could lie about their vote and there is no way of determining how they really voted.

Computer science professor Scott Aronson argues that since members of Congress and state legislatures trade votes all the time, presidential vote swapping is equally acceptable. But the former type of voting isn’t addressed by the Constitution. In fact, the citizen’s right to vote is mentioned in the Constitution more than any other right — five times. Four amendments use the same powerful language, “The right of citizens of the United States to vote shall not be denied or abridged …”

An argument can be made that swapping votes fits the definition of abridged, which includes “to shorten by omissions while retaining the basic contents; diminish, curtail, deprive or cut off.” The Trump supporters’ votes in swing states are being diminished through this practice. “Shorten by omissions” could refer to the Stein voters in swing states omitting their vote for Stein. 

Judge Fisher said in Porter v. Bowen that no exchange of value takes place during vote swapping, since no money exchanges hands. However, the federal law prohibiting bribery includes anything of pecuniary value, not just money or a gift. There is an argument that the voter in the non-swing state is receiving the benefit of having their candidate’s chances improve.

Porter v. Bowen was a bad decision that circumvents the foundation of this country, allowing dishonest people to rig the vote. If Democrats don’t like the Electoral College, they need to pass a constitutional amendment to change the system. Yet the Democrats know they could never obtain enough support to eliminate the Electoral College, so instead they circumvent it. Similarly, most states are winner take all; if the Democrats don’t like this, they need to change how states award their electoral votes. If Clinton wins the election, unfair vote swapping may be the deciding factor.