The Vote Must Go On (LIBERAL LAW PROF CRITICIZES 9TH CIRCUIT DECISION POSTPONING CALIFORNIA RECALL)

The federal appeals court order delaying the recall election in California cites the Supreme Court's decision in Bush v. Gore more than a dozen times. It is undeniable that California's recall election, which will use punch-card voting systems, has the potential to become another voting fiasco replete with hanging chads and changing standards. But this is not nearly enough to make it a legal rerun of Bush v. Gore.

For starters, in 2000 the Supreme Court intervened only after the election. Its decision came too late to distort the actual conduct of the election campaign. In the run-up to November, George Bush and Al Gore shaped their political appeals to the voters in blissful ignorance of the crisis ahead. The court was thus able to focus on the question of equal protection in the recount without worrying about its decision's impact on crucial constitutional values of political speech.

This time around, the candidates in California have already invested heavily in a short campaign. Their competing strategies have been designed to reach a climax on the Oct. 7 election date. If they had known they would have to compete until March, they would have conducted their campaigns very differently. By suddenly changing the finish line, the three-judge panel of the United States Court of Appeals for the Ninth Circuit disrupts the core First Amendment freedom to present a coherent political message to voters.

Worse yet, the decision disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort. State law promised them a quick election if they completed their petitions by an August deadline. Now their effort will have to compete in March with the candidates for the Democratic presidential nomination. A campaign focused on California issues may be swamped by national politics.

All of these concerns make the present case far more complex than Bush v. Gore. Three years ago, the Supreme Court had the luxury of focusing narrowly on the vote count and the extent to which it violated principles of equal protection. In contrast, the appeals court was also obliged to place the First Amendment freedoms of the candidates and the public into the balance. Unfortunately, the court's opinion doesn't even recognize the existence of this constitutional problem.

The decision departs from Bush v. Gore in a second way. When the Supreme Court stopped the recount, Florida's time was running out. Continuing the recount increased the risk that its electoral vote would be challenged in Washington when Congress counted all the electoral ballots. Whatever its other merits or demerits, the court's intervention protected the right of each state to make its voice heard in selecting the president.

In contrast, the present decision attacks states' rights at their very core. The short election period is central to California's political integrity. Its constitution places a limit of six months on this extraordinary process. By extending the election beyond this period, the court condemns the state to an extended period of political paralysis.

While California's punch cards are obsolete, they have worked well enough for decades. And while there is a chance of fiasco this time, there is a certainty of a widespread disruption of precious First Amendment freedoms. Instead of delaying the vote, the court should have focused on more concrete problems. For example, it could have ordered the state to open more polling places in heavily minority areas.

There is one consolation. The panel stayed its decision for a week to allow for reconsideration, either by the full Ninth Circuit or the Supreme Court. In either case, the court should make it plain that Bush v. Gore is not an invitation for an endless series of judicial interventions into the very heart of our political life.

Bruce Ackerman, professor of law and political science at Yale, is editor of ``Bush v. Gore: The Question of Legitimacy.''

Yale Law School Professor Bruce Ackerman is one of the most liberal constitutional scholars in the nation, and even *he* believes that what the 9th Circuit did was illegitimate. His point on the decision's First Amendment implications is quite salient, and bears reflection by liberal judges, especially those from the 9th Circuit and the Florida and New Jersey Supreme Courts.

If there was one thing that the 9th Circuit should have been troubled by was the fact that the election has a "jungle primary" (or "jungle general," I guess) format in which the voters who compose political parties are unable to decide among themselves---in a closed primary---who their standard bearer should be. On the same day that the 9th Circuit illegitimately postponed the recall election, it ruled that the Washington State "open-primary" system was unconstitutional. The U.S. Supreme Court had previously ruled---correctly, in my opinion---that the California open-primary system violated the First Amendment, and the 9th Circuit was correct to follow the Supreme Court precedent. I just wish the 9th Circuit would realize that the rights of California Republicans are similarly being trampled by the recall election's "jungle" format, since Republicans will not have the opportunity to decide in the polls whether Arnold Schwarzenegger or Tom McClintock should be our sole candidate facing Cruz Bustamante. The "jungle" format is a clear violation of our Freedom of Speech, and I hope that some court of law realizes this before this sham election is held.

There are many other problems with the decision, including the following:

1. The Court found that the use of punch card machines in some but not all counties would be a violation of the equal protection clause in part because of one or more studies which have found that punch card machines result in more "nonvotes" than three competing methods. However, the Court made no finding with regard to the extent of that difference. It quoted one study, which indicated that punch cards result in 2.5 times as many errors as competing systems. It has since been reported that that study was conducted for the manufacturer of one of the competing systems

In the decision, the Court noted that the plaintiffs had tendered evidence that the use of punch card machines in certain counties would result in 40,000 nonvotes. The Court made no reference to any evidence the defense may have presented to counter this claim by the plaintiffs, nor did the Court reference any evidence with regard to the probable number of nonvotes if competing systems are used, other than the study noted above. How is it possible to find a denial of equal protection resulting in great harm under those circustnaces?

Further, assume for a moment that the one study quoted by the Court with regard to the relative accuracy of the competing systems is accurate (despite its questionable provenance), and that the use of competing systems would result in fewer nonvotes by a factor of 2.5. Also assume that registered voters in the six counties differ demographically from the rest of the state by a factor of 16%, as noted by the Court, and that the 40,000 nonvote figure is accurate. Based on those assumptions, in an election in which as many as 10,000,000 votes may be cast, the disproportionate effect on minority voters would be 3840 votes, or approximately .038% Based on this grievous possible result, the Court ran roughshod over the laws and Constitution of California and found that their application would violate the equal protection clause.

2. The court noted that, to obtain injuctive relief, a plaintiff must show the probability of great harm and a probability of success on the merits. The Court also noted that, the greater the demonstrated harm, the less siginificant the showing of a probable success on the merits must be. The Court then lowered the bar on the probability of success by equating "great harm" with "irreparable harm" and finding that the harm to plaintiffs would be irreparable if an injunction did not issue.

In my view, "irreparable" does not mean "great." For example, if one of my treasured, unique keepsakes is stolen, the damage to me is irreparable, in that it cannot be replaced; however, the damage to me is not great, in that it was just a keepsake. In the case of the election, the damage to racial minorities, based on the assumptions set forth in the preceding paragraph would be neither irreparable nor great. Manual recounts would be possible if the recall passed by less than .038%, and it is highly unlikely that the margin in the election would be that small. Without knowing the results of the election it is in fact not even possible to say that ANY harm would arise out of the use of the punch card machines.

3. The Court misconstrued Bush v. Gore. It interpreted Bush v. Gore to mean that a state's laws and Constitution may not create an unequal means of counting votes in different counties even in an election which does not involve federal office. I read Bush v. Gore to mean that, in an election affecting the Electoral College, the courts of a state may not change the means of counting the votes and certifying the results of the election after the election has been held.

4. The Court dismisses out of hand the requirement of the California Consitution that the recall election be held within 60 to 80 days of the certification of the recall petition by noting that, had the petition been certified 45 days later, the recall election would have occured in March. In so doing, the 9th Circuit emulates the Florida Supreme Court, which also didn't seem to believe that statutory deadlines had much force, and ignores the manifest interest of the people of California in voting promptly on the continued tenure of an officeholder subject to a recall.

5. The Court demonstrates the customary disdain of an activist court for the letter of the law. The Court writes as follows:

"The district court placed dispositive weight on the public interest in complying with state election law. We agree that the Secretary of State has an interest in complying with state election law, and that this interest must be acccounted for in the balance of hardships. However, the district court erred in treating this state interest as if it were a large part of the public interest. An abstract interest in strict compliance with the letter of state law is a strong state interest, but it is a less important public interst in the context of challenges to state law under the equal protection clause.... Of course, the public has an interest in lively public debate, being informed of political issues, orderly elections, speed in resolving challenges to officials, confidence in fair elections, and the like, and many state election laws are designed to promote these interests. To the extent compliance with those laws promotes these important public interests, they desrve great weight in assessing which way the public interest factor points. But it is the principles and spirit of these state laws, not necessarily the letter, that deserve weight in examining the public interest."

This is an extraordinary statement. It recognizes that the interests of state and the people may differ. This is such a Jeffersonian concept that I am astounded that two Clinton appointees and one Carter appointee would pay even nominal fealty to it. On the other hand it easily dismisses the very important public issues it identifies and contains the normal reverence of the activist judge for the spirit of the law to the detriment of the letter of the law.

In summary, the decision of the three judge panel should be reversed by the Ninth Circuit en banc. We should know shortly which way the Ninth will go.

This is the part that bugs me the most, other than what you laid out in #2 (how do we know the harm if the result is greater than the error).

Comparing to Bush v Gore, in that case the vote was held, the ballots tallied, the result contested, and a partial recount ordered. If I recall correctly, the equal protection came from the unequal selective manul recounting of ballots. In other words, the first tally of punchcard ballots was equal because they were all machine-counted. The recount became unequal because only a few counties were manually recounting, and each county was defining a valid vote differently, "disenfranchising" voters in other counties whose manually recounted ballot may have counted differently. For the recount to be equal, all punchcard counties would have to be recounted under the same definition of a vote.

In California, no election has occurred yet. No initial machine tally has taken place. We don't know the margin of victory to say that a recount could alter the results. But, it is not the punchcard ballot itself that is the problem nor the method of tallying them. If people follow the instructions properly, the machines will count the ballots the same way for everyone who uses punchcards -- equal protection.

Florida also had other issues with the ballots, such as the Butterfly Ballot. In California, the voter will only be required to make four punches: 1) Recall Yes or No, 2) Replacement Candidate, 3) Prop 53 Yes or No, 4) Prop 54 Yes or No. What are the odds of invalidating a ballot with only four contests instead of the usual 10-20 contests?

We would have to see the margin of victory before we can make a claim of harm. The California situation is nothing like the Florida situation.

-PJ

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