Porter

Order; Dissent by Judge KLEINFELD.

ORDER

Judges Fisher and Clifton voted to deny the petition for rehearing en banc and Judge Martinez so recommends.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for rehearing en banc, filed August 27, 2007, is denied.

Judge Kleinfeld’s dissent from denial of rehearing en banc is filed concurrently herewith.

dissenting from denial of rehearing en banc:

I respectfully dissent.

This case is about whether the First Amendment protects from prosecution people who buy votes. Instead of cash, or beer and cigars, the buyers offered promises. The special twist, a very important one, was that the purpose of the scheme was to effectuate what amounted to people voting in states other than their own. The not very special twist is that instead of standing around the polling place to buy votes, or chartering buses to bring voters to other states, the scheme used internet sites to enable people to exchange promises. The deals were in the form, “if you promise to vote for my preferred candidate in your state, I will promise to vote for your preferred candidate in my state.”

During the 2000 election, Porter and the other plaintiffs set up internet sites, votex-change2000.com and voteswap2000.com, to facilitate vote swapping agreements. 1 The voteswap2000.com site said that its purpose was “ ‘[t]o maximize the percentage *1182 of the popular vote that Nader receives, yet allow Gore to win the national election.’” 2 While voteswap2000.com targeted “[o]nly swing-state Nader supporters and safe-state…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALAN PORTER; PATRICK KERR; 

STEVEN LEWIS; WILLIAM J. CODY, No. 06-55517 Plaintiffs-Appellants, D.C. No. v. CV-00-11700-RJK DEBRA BOWEN,* in her official  Central District capacity as California Secretary of of California, State; BILL JONES, in his individual Los Angeles capacity, ORDER Defendants-Appellees.  Filed March 13, 2008

Before: Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Ricardo S. Martinez, District Judge.**

Order; Dissent by Judge Kleinfeld

ORDER

Judges Fisher and Clifton voted to deny the petition for rehearing en banc and Judge Martinez so recommends.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the mat- ter en banc. The matter failed to receive a majority of the

*Debra Bowen is substituted for her predecessor, Bruce McPherson, as Secretary of State, pursuant to Fed. R. App. P. 43(c)(2). **The Honorable Ricardo S. Martinez, United States…