In what strikes me as a bizarre move, the 9th Circuit Court of Appeals has ordered a delay in California’s recall election on the ground that if the election proceeds as scheduled by statute, six counties will use punch card ballots. TheCourt said that punch card machines are “more prone to voter error than are newer voting systems.” While I haven’t yet seen the Court’s decision, I assume it must be based on some hitherto-unknown Constitutional principle, or else the federal court would have no jurisdiction to tell California how to run its election. No word yet on when the court will tell California to hold the election.
There are several ironies here. The Democrats’ most recent ploy has been to disparage the recall as the latest in a series of “undemocratic” efforts by Republicans to overturn the popular will. (How an election can be undemocratic is unclear, but never mind.) It will be interesting to see how they react to something that is truly undemocratic; i.e., a court’s order that an election called pursuant to state law not take place.
The implications of the court’s order are unclear. Is the court telling us that it is unconstitutional for any county in America to use punch card machines? Or just these counties in California? Was every election held over the last 100 years unconstitutional? Or is the Constitutional right to non-punch card voting machines one that just now came into being?
Also, the court’s solicitude for the possibility of punch card error is ironic in the context of the massive voter fraud that afflicts American elections. If voters are Constitutionally entitled to elections free of punch card error, are they also entitled to elections that are free of voter fraud? Or, more precisely, if counties are Constitutionally required to use the most up to date technology to reduce the relatively remote chance of machine error, why aren’t they also required to use the most up to date technologies to reduce the much greater risk of voter fraud? And if punch cards are unconstitutional, why aren’t Motor Voter laws? Or, if issuing drivers’ licenses to illegal aliens will facilitate voter fraud–as it surely will–then isn’t the recent California enactment, signed just a few days ago by Governor Davis, unconstitutional?
Don’t expect serious discussion of any of these issues from our federal courts. The 9th Circuit, and probably most other federal courts, would be much more likely to hold that election systems that facilitate voter fraud are required by the Constitution than prohibited by it.
UPDATE: The 9th Circuit’s opinion (Southwest Voter Registration v. Shelley) is here. Read it and weep. The Court finds that it is unconstitutional to use certain brands of punch card machines in some counties, when other types of voting machines are used in other counties. The opinion is long on mumbo-jumbo, invoking Bush v. Gore, weighing the pros and cons of holding the recall election in November versus delaying it until March, invoking the spectre of “disenfranchisement” of “communities of color,” and so on. The key logic of the opinion, it seems to me, is contained in these words:
“Plaintiffs’ claim presents almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause….No voting system is foolproof, of course, and the Constitution does not demand the use of the best available technology. However, what the Constitution does require is equal treatment of votes cast in a manner that comports with the Equal Protection Clause.” (p. 20) If anyone has any idea what that last sentence means, and why the Court’s ruling does not mean that every county is required to use the best available technology–whatever that may be–let me know. In a sixty page opinion, the quoted language is the Court’s only attempt to explain why it is unconstitutional to use two specified brands of punch card machines, but not unconstitional to use other types of voting machines with varying error rates, or why counties are not constitutionally required to implement measures to combat voter fraud. (This last issue, of course, is never mentioned.)
The Court’s claim that the California recall case is “almost precisely the same” as Bush v. Gore is of course disingenuous. In Bush v. Gore the issue was completely different; in fact, the Supreme Court said in that case: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” But the 9th Circuit isn’t striving for intellectual coherence; it is posing a political challenge to the Supreme Court. If the Court reverses, as it certainly should, its decision will be added to the legend of “disenfranchisement.” We should know very soon whether the Supreme Court has the stomach for another politically-charged election controversy.
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