The Ninth Circuit, the appeals court that purged
God from the Pledge of Allegiance, has now discarded the recall
election, creating a possible dilemma for the Supreme Court.
If the nation's highest court reinstates the recall, it could
appear crassly partisan. After all, this is the same Supreme
Court that used the constitutional guarantees of equal protection
and due process to trump state law and settle the 2000 election
In 2000, equal protection was
compromised by a recount in selected counties, each of which
employed different standards to determine how far a chad had
to be punched through to count as a vote. In the recall case,
a Ninth Circuit panel of three judges decided that, because
some disproportionately minority counties use the same punch-card
system made famous in Florida while other counties have more
modern voting systems, voters in the former counties are more
likely to have their votes not counted.
However, there are flaws in the panel's opinion
that, if the full Ninth Circuit affirms it, would allow the
Supreme Court to reverse the decision while still adhering to
its holding in Bush v. Gore.
First, the Supreme Court can simply recognize
that knowledge is power. Conny McCormack, the Los Angeles County
registrar-recorder, recently asked, "Who could fail to
punch their chad all the way through after all the attention
this has gotten?" While the Ninth Circuit claims the punch-card
system won't count over 40,000 attempted votes, that assumes
voters are no more aware of the need to completely press the
chad than they were in elections prior to the well-publicized
Florida fiasco. This assumption bears little relationship to
Second, the Ninth Circuit decision, even if
correct in identifying the punch-card system's shortcomings,
utterly failed to consider remedies other than postponing the
election. Without justification, the court concluded that, "Once
the election occurs, the harm will be irreparable because Plaintiffs
are without an adequate post-election remedy." Irreparable
harm is the high legal standard plaintiffs must meet before
courts will grant an injunction. Harm beyond repair cannot be
presumed from a violation of equal protection; it must be proven.
Apparently, the Ninth Circuit failed to read
California election law, which generously provides for election
contests and manual recounts. California Elections Code Chapter
12 allows any voter to request a manual recount. Also, any voter
can formally contest an election in which "there was an
error in the vote-counting programs or summation of ballot counts."
Moreover, California conducts a much more thorough
canvassing than Florida before certifying election results.
California's canvass entails a manual tabulation of ballots
from a randomly selected 1% of the voting precincts. The manual
vote tally results are compared with the computer counts to
verify the accuracy of the vote tabulation software. An audit
reconciles the number of voters who signed in at each precinct
with the number of ballots cast.
Also, the California Secretary of State has
adopted a single standard for determining what constitutes a
vote in all systems, avoiding different definitions of a vote
being used in different counties.
With punch-cards, California requires the chad
to hang by only one corner to count. If this standard is too
stringent, perhaps disadvantaging voters in counties with punch-card
systems, a federal court in a post-election challenge could
simply require that a vote be counted with only one or two of
the four corners punctured.
Finally, it cannot be assumed that this election
will be so close as to make it even statistically possible that
the disparity in voting technology could affect the outcome.
The relatively small number of votes undetected by the punch-card
counting system, especially if supplemented by a uniform manual
recount, will probably be inconsequential.
Although there is some abstract harm in the
random, unintentional loss of any person's attempted vote, it
is not the kind of grave and concrete harm needed to justify
the drastic decision to postpone an election.
In most states, different counties use different
voting equipment with different rates of error, making the Ninth
Circuit decision a prescription for the pre-emptive postponement
of nearly all elections. California is in the process of upgrading
voting systems in all counties, but the wheels of democracy
should not be stopped in the interim.
In 1988, the Ninth Circuit declared in Burdick
v. Takushi that federal courts should refrain from invalidating
state election laws when a reasonable alternative course of
action exists. Now, the court has violated this principle by
failing to even consider the many post-election remedies available,
and the likelihood that the results will make this dispute academic.
Consequently, the Supreme Court can reverse this decision solely
because it imposes an excessive remedy, while still affirming
the fundamental holding of Bush v. Gore that federal courts
must ensure the integrity of all elections.
Marc Levin, a practicing attorney
and former law clerk on the U.S. Court of Appeals for the Fifth
Circuit, is President of the American
Freedom Center, a conservative, Austin,TX-based public policy
institute, and Associate Editor of The Austin Review, a monthly
journal on current affairs.
His op-eds have appeared in the Wall
Street Journal, USA Today, Atlanta Journal-Constitution, Jerusalem
Post, Dallas Morning News, and Houston Chronicle.
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