The 9th Circuit Court of Appeals has ordered a stay on the California recall election, arguing that the use of punch-card ballots creates a situation that violates the Equal Protection Clause of the US Constitution.
The 9th is the most left-leaning court in the nation, and this move is not necessarily a surprise. The three-judge panel overturned a previous decision by US District Court Judge Stephen V. Wilson on August 20th that the use of punch-card ballots did not violate the Equal Protection Clause.
Naturally, an appeal to the US Supreme Court is upcoming. California’s Democratic Secretary of State Kevin Shelley has stated that he will fight the decision, as state law is clear that the recall election must be held within three months of the certification of the recall petition.
The ACLU’s argument in this case is weak, considering that there is no Constitutional provision that mandates that election equipment must be equal. Indeed, under the Constitution the states have the sole authority to determine the manner in which elections take place. It would be stretching the Constitution entirely too far to argue that the Equal Protection Clause somehow gives the federal government the right to interfere in the procedures of a state election. As with the case of Bush v. Gore there is no Constitutional procedure by which a federal agency has the right to interfere with the election procedures of a state.
My feeling is that the decision of the 9th will be overturned on appeal. However, it may be by yet another 5-4 vote in the Supreme Court, an action which will surely make this recall even more controversial on both sides.
You might want to share your opinion that arguing the Equal Protection Clause would be “stretching the Constitution entirely too far” with the Supreme Court, as it was precisely this reasoning by which they ruled in Bush’s favor in 2000, thereby granting him the presidency. And there IS a constitutional procedure by which a federal agency has the right to interfere with state election procedures- it’s called the Voting Rights Act, created to ensure that disenfranchised voters are allowed to cast a ballot despite state electoral structures that prevent them from doing so. While the recall election might not represent an intentional denial of a group’s right to vote à la Jim Crow, it is nonetheless clear that the residents of poorer counties are statistically guaranteed to have a large proportion of their votes spoiled in what promises to be a very close election, on account of inherently inferior voting equipment. Thus it is clear that as a group their voting rights are not equal to those of their fellow Californians, who can be sure that their votes will be counted in their entirety. As in Florida in 2000 (ignoring the thousands of black voters who were denied their right to vote by being wrongly stricken from the voter rolls), this situation is going to have an impact on the outcome that is independent of the will of the California electorate, determined not by their choice of candidate but by the quality of their electoral infrastructure. Given the fact that the state of California has recognized the fundamental injustice of this situation and their need to requite it in the March election, I think it would be quite reasonable to argue that voters in the recall election should be guaranteed a similar level of electoral equitability, if not with new voting machines, then at least through a means by which the validity of their ballots can be verified before being submitted. Anything less would be simply undemocratic.
There’s a key difference between Bush v. Gore and this case:
Bush v. Gore dealt with different counting standards in different counties. It would be a violation of the Fourteenth Amendment to say that a "dangling chad" is a legitimate vote in one county and not in another.
The case before the Ninth argues that different kinds of balloting systems are unfair. Except by that logic Gray Davis’ 2002 is also invalid. In fact, every ballot in every state is also invalid under those criteria.
Furthermore, the average failure rate of every automated ballot system is around 3% – including touch screens. There is no remedy for the problem, therefore there is no ground for legal action.
If punch cards were good enough to elect Gray Davis in 2002 they are good enough to recall him. The Ninth’s decision is inconsistant with prior precedent and the remedy offered will have no significant effect on the outcome of the election – except as a partisan political ploy to attempt to increase Democratic turnout by having the recall be the same time as the Democratic primary.
The Ninth will end up reversing themselves, or the Supreme Court will end up doing. Either way, this ruling will not stand.