by John M. Curtis
(310) 204-8700

Copyright September 16, 2003
All Rights Reserved.

eleaguered California Gov. Gray Davis was finally given something to smile about when a three-judge panel of the U.S. 9th Circuit Court of Appeals halted the scheduled Oct. 7 recall election, agreeing with Los Angeles Chapter of the American Civil Liberties Union that the state's obsolete punch-card voting system potentially disenfranchised 40,000 voters. Since Calif. Sec. of State Kevin Shelley certified the recall in July, Davis & Co. began running interference with a series of annoying lawsuits, citing every possible excuse why the recall should not go forward. First, petitions were unlawfully obtained, next it was to keep recall candidates off the ballot, then to keep out unrelated propositions, then blocking Davis' successors, and finally the “evils” of punch-card voting. Regardless of error rates, no one complained about “hanging chads” until Bush vs. Gore was settled by the U.S. Supreme Court in Dec. 2000.

      Analyzing the polls back in July, Davis' strategists concluded his best way of saving his job was the courts. Yesterday's ruling by U.S. 9th Circuit Court judges Richard A. Paez, Harry Pregerson and Sidney R. Thomas, gave Davis exactly what the doctor ordered—a temporary breather. Exploiting Bush vs. Gore, the three-judge panel jumped the gun, anticipating a statistical dead-heat, requiring painstaking hand counting to resolve the outcome. “The margin of victory could well be less than the margin of error in the use of punch-card technology,” said the panel, leaping to unwarranted conclusions. Since 1964, Californians have voted with punch-cards, including last year's reelection of Gov. Davis. No objections were made then. While there's nothing wrong with updating obsolete equipment, that has nothing to do with following the state's constitution requiring the recall election on Oct. 7.

      Arguing about the 14th Amendment's “equal protection” clause has little to do with the 9th Circuit Court's ruling to block the recall. Speculating about contested elections reveals something more than constitutional grounds for halting the Oct. 7 election. “I do think the prospect of small voter turnout overruling 8 million people is not good for democracy,” said Davis, cheering the court's decision to block the recall. California's constitution spells out the conditions for removing an incumbent governor. Sec. of State Kevin Shelley already gave the maximum 80 days, between certifying the recall petition and calling the election. California's inability to employ new voting systems can't negate a constitutionally mandated election. “It's more than a wrinkle,” said Los Angeles County Registrar-Recorder Conny McCormak, concerned that LA County won't have new voting equipment in place by the March 2 primary.

      Whatever error rates exist with punch-cards, it's preferred over paper-pencil-ballots, prone toward even greater mistakes. No one knows for sure the error rates of new optical scanners scheduled for installation before the March 2 primary. “No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no,” said McCormak, informing the Secretary of State, in effect, that LA County residents will not be able to vote in the next presidential primary. Given the choice between punch-cards or not voting, the choice is obvious. Experts estimate that some 40,000 votes could be lost with punch-cards—but no one really knows. “The state has an interest in holding a fair election—one trusted by the candidates and voters to yield and accurate and unbiased result,” wrote the 9th Circuit Court judges in a joint opinion, failing to consider that new voting technology isn't yet available.

      Arguing before the court, both sides lose the practical realities of conducting elections. Each side makes compelling legal arguments in the name of partisan politics, not what's best for California voters. “In this case there's a simple way to simple way to eliminate the differences—by waiting for the newer, more accurate machines to be put into place,” said Harvard law professor Lawrence H. Tribe, who argued, but lost, Bush vs. Gore in the U.S. Supreme Court. Tribe would have the election delayed indefinitely, not because it's good for the state, but because he still has sour grapes over the 2000 election. While Davis seeks a reprieve, the court must implement the law of the land requiring a recall election on Oct. 7. Punch-cards or not, voters still have the right to exercise their franchise under the state constitution, regardless of the best legal and academic arguments.

      Ruling against punch-card voting, the U.S. 9th Circuit Court of Appeals now lashes out against the Supreme Court's politically unpopular ruling in Bush vs. Gore. Splitting hairs on punch-cards had little to do with the outcome of the 2000 election. Punch card errors were miniscule compared to the estimated 20,000 disqualified voters in South Palm Beach alone who had the misfortune of the infamous “butterfly” ballot. Regardless of imperfections, punch-cards have been used nationwide since 1964. “This is a classic voting rights equal protection claim,” said the judges, leaping to reckless conclusions drawn from Bush vs. Gore—a case that had more to do with partisan bickering over hand vs. machine scoring than the merits of punch-cards. With the full 9th Circuit Court now considering a review, it's possible they'll come to their senses and finally get it right.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and globlal news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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