The loser, Dale Holness’s claim is that winner Sheila Cherfilus-McCormick essentially bought votes by promising legislation that would pay middle-income people $ 1,000 a month. Her trial calls it a “gimmick designed only to motivate people to vote for her.”

Well, certainly. But the gimmick is perfectly legal. The Supreme Court has long held that the First Amendment protects a candidate’s promise that his victory will mean more money in the pockets of voters. What Cherfilus-McCormick did is what office seekers do all the time. A public promise of cash payments to a large number of voters is not illegal; a private promise of money just for me would be. As lawyer Pamela Karlan memorably said, candidates are allowed to buy votes in bulk but not in retail. Which leads to the question on democracy: why not allow private transactions for votes? If Passionate Partisan pays Fellow Citizen the going rate (obviously around $ 10 or $ 20) to vote a certain way, what exactly did Partisan do wrong?

Consider that we can freely alienate other constitutional rights. When a lawyer agrees not to divulge a client’s confidences, no one is assuming that the lawyer’s right to free speech is unfairly infringed. Religious freedom is not violated when an hourly worker forgoes worship services on weekends in order to save at least 1.5 hours.

In addition, although frowned upon almost everywhere, buying votes is still common in the world, even when secret ballots make the market difficult to control. The rapid growth of social media has created channels that facilitate electoral transactions. And we can’t rule out the United States, where voice buying has long been common. Researchers have found that votes are typically bought not by outsiders but by acquaintances or influential community leaders.

Academics have tried to explain why we can sell other rights but not votes: because our votes affect others, for example. Or because public officials (and by extension candidates for public office) have fiduciary obligations to voters. Because if the votes could be sold, voters would have yet another reason to consider primarily their own best interests. Because allowing the sale of votes would transfer more political power to the rich.

While each of these arguments has some merit, I suspect that much of the instinctive opposition to vote-selling stems from the near-mystical faith in the ballot box as the heart of democracy, the place where citizens make thoughtful choices. The voter who lets the choice be influenced by a foul income betrays this faith.

In an 1880 speech, the famous liberal lawyer Robert Ingersoll explained: “Every voter is a full king; and every elector, poor and rich, wears the purple of authority in the same way. The man who will sell his vote is the man who abdicates the American throne. “The voice seller, said Ingersoll,” is not worthy of being an American citizen. “

The temptation was considered endemic. A Connecticut pastor, in an 1898 sermon, urged parishioners not to sell their votes “for a pittance or a drink of liquor.” vote for the small sum of two or three dollars. Don’t sell your vote at all, because God hates a man who sells his vote.

Running against President Franklin D. Roosevelt in 1936, Kansas Governor Alfred M. Landon attempted to turn this widespread sentiment into political advantage: to sell his vote for bread. Pro-Democrat newspapers bristled, interpreting Landon’s words as an open accusation that government officials were conditioning relief on political support. In context, however, the challenger clearly meant that he wanted an America where people didn’t have to. In other words, he believed it was wrong to “buy” votes by promising government aid. .

Which brings us back to Florida. As I said, Holness’ voice-buying accusation is frivolous; Cherfilus-McCormick didn’t buy any votes. Yet the instinct upon which his trial appeals, while absurd in this particular case, runs deep in American history. Admittedly, the image of the rational and disinterested voter may be only a fiction, but it is often by such fictions that democracy is preserved.

Stephen L. Carter is Bloomberg Opinion Columnist and Law Professor at Yale University.