Monday :: Sep 15, 2003

Ninth Circuit Halts CA Recall Election


by Steve

In a somewhat unexpected move, the Ninth Circuit Court of Appeals this morning postponed the October 7th California gubernatorial recall election due to concerns over equal protection stemming from the use by several large counties of punch-card voting machines. In an ironic twist of fate, the Ninth Circuit used the Supreme Courtís reasoning in Bush V. Gore as the basis for delaying the election until all who vote can be assured that their votes can be counted equally.

Three weeks before voters are scheduled to go to the polls in California's historic recall, a federal appeals court today postponed the Oct. 7 election, ruling that the use of older punch-card ballot machines would disenfranchise poor and minority voters.

A three-judge panel of the 9th U.S. Circuit Court of Appeals sided with the ACLU that the use of punch cards in six urban counties would subject voters there to a greater likelihood that the ballots would be misread or discarded as happened during Florida's election fiasco in the presidential vote in 2000.

In it's decision, the judicial panel relied in part on the Supreme Court ruling that decided the hotly contested race between then vice president Al Gore and then Texas governor George W. Bush. The court wrote today, "The choice between holding a hurried, constitutionally infirm election and one held a short time later that assures voters that the 'rudimentary requirements of equal treatment and fundamental fairness are satisfied' is clear. . . . These issues are better resolved prophylactically than by bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory. The Supreme Court's admonition in [the Florida case] bears re-quoting: 'The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.' "

It can be argued that the delay, which also affects two ballot propositions that must now be held over until the March presidential primary, may not necessarily help Gray Davis, who has been making progress over the last couple of weeks in convincing voters against the recall. The delay also allows the state GOP time to get Tom McClintock out of the race so that Arnold has a clear shot. But even if that happened, Davis can deal with it by challenging Arnold to a one-on-one debate, and no matter how Schwarzenegger responds to that challenge, Davis wins.

But it will be curious to see if this case is appealed by Democratic California Secretary of State Kevin Shelley to the full Ninth Circuit, or to the SCOTUS. If it goes to the SCOTUS, will they get involved, and what legal rationale will they use to suit the GOP this time?

Steve :: 12:30 PM :: Comments (8) :: Digg It!