A lot of conservatives are upset about the 9th circuit's decision to postpone the California recall election, finding it to be more unwarranted judicial activism -- and again, as in Florida and New Jersey, activism which coincidentally happens to benefit Democrats. There has been a lot of criticism about unelected judges taking elections out of the hands of the people.
Since I do think the U.S. Supreme Court made the right call on Florida 2000, I can't rightly object to judges intervening in an election. Equal protection is a valid reason, as longstanding precedent as well as Bush v. Gore make clear, for the federal courts to intervene in the electoral process. And at least this intervention, unlike the Florida Supreme Court's, took place before the election, so it's not quite so obvious that they're manipulating the outcome to benefit the Democratic candidate.
That having been said, it seems to me that the application of the Bush v. Gore precedent to this recall situation does not compel this result.
- Bush v. Gore held that varying standards from district to district were a problem. That is, a chad hanging by two corners might be considered a vote in one county and a non-vote in another, based on the whims of poll workers.
As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.On the other hand, the California election doesn't present that problem. It merely presents the possibility that more ballots will be discarded in some counties as a result of errors -- errors by the voters, not by poll
The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a
vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.
officials, though those errors may be facilitated (though not caused) by the choice of ballot technology used. And, indeed, Bush v. Gore explicitly did not address that issue:
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.There's a big difference between mechanical error rates being slightly different and poll workers being allowed to pick and choose which ballots they wish to count without any possibility of oversight.
- Even if the court found that different error rates presented a constitutional problem, that doesn't justify this decision. While other forms of ballot might have a lower error rate in general than punch cards, that does not mean that a newly-implemented system in these California counties will have a lower rate than an established punch card system. Training poll workers (who, let's face it, aren't the sharpest knifes in the drawer) to use entirely new technology in a short time period doesn't inspire much in the way of confidence that they won't make mistakes.
As to what is going to happen, I have no idea. I've got to imagine that the Supreme Court is going to be extremely reluctant to get involved. [Update: while I was writing this, word came down that the 9th circuit is getting involved, asking the parties to file briefs on whether they should hear the case en banc. Would they do so if there weren't a decent chance of reversing the panel's decision? I don't know.]