September 24, 2003, 8:33 a.m.
Law, Resurrected!
A victory for law and restraint.

By Douglas W. Kmiec

MALIBU, CALIF. — It is popular for pundits in and outside our state to decry the California recall as a circus or some aberrant manifestation of mob rule. It is neither. In truth, it has re-enlivened democracy and reestablished the judiciary as a font of law, not politics. The per curiam eleven-judge ruling by the Ninth Circuit, was so wholly law that in its simplicity and directness it stands as an elegant refutation of all of the whining about partisanship that attended Bush v. Gore.

The en banc Ninth Circuit acted unanimously and swiftly. These men and women appointed by Democratic and Republican presidents agreed on the essential fact: Different voting machines have different levels of effectiveness. The "residual rate" for punchcard machines was alleged to be 2.23 percent — but what exactly did that mean? Acknowledging that a political scientist claimed the rate might be twice that of other equipment, the court also noted that no one really knows how well newer technology will do. Moreover, it turns out, a residual rate is not an error rate. Piercing the ACLU's overblown, and unproven, rhetoric that this rate somehow meant 40,000 votes would not be counted, the court succinctly responded: A card may not be counted because it represents a voter's affirmative choice not to vote for a particular candidate or initiative. It may also mean the voter didn't complete the ballot correctly, which hardly amounts to machine error.

Once the facts were brought more clearly into view, there was the law. The recall challengers presented two substantive claims — denial of Equal Protection and violation of the federal Voting Rights Act. The constitutional claim of inequality, said the judges with notable humility, had never been raised precisely in the same way. Yet, the outcome was to be determined not by clever argument, but precedent. Fairly read, the U.S. Supreme Court in Bush denied that local use of different voting systems was tantamount to inequality. Judge Alex Kozinski, like a fine Socratic scholar, had put the advocates through their paces on this issue the day before. What if the machines varied by 10 percent or 50 percent, asked the judge. Interesting, important questions, but ultimately not outcome determinative since the residual rates in the real world in the real record of the case were minuscule by comparison. Precedent and reality governed abstraction and aggressive advocacy. Such restraint defines the judicial role.

Given the sensitivity of the federal Voting Rights Act — allowing challenge not just for intentional discrimination, but disparate impact — the judges noted a "possibility of success . . . but not a strong likelihood." Yes, many minority voters are concentrated in our state's urban areas that retain the punchcard equipment, but so are many majority voters. Can it be meaningfully said that this disparate impact is "on account of race" as the Voting Rights Act requires? It is a serious allegation, and should not be made, or accepted, lightly. The judges did not do so, even as they did not foreclose the argument altogether.

It was the balance of hardship, however, that weighed heavily on the judges' minds. The advocates of delay fell into the old Florida mantra of "count every vote," continually obfuscating that hundreds of thousands of absentee ballots already cast would, in Judge Andrew Kleinfeld's words, need to be "junked" if the election were delayed.

And beyond this was the "material hardship" the delay would impose upon the state of California and its citizens. Understated by the claimants was time and money spent on voter information, preparations to man the polls, the vast sum spent by candidates, and the time and attention this has already taken from the state's business. It is one thing for federal judges to sit in chambers and indulge fanciful legal theory, even theory perhaps benignly intended to make elections more perfect, it is another to tell citizens who have already voted "that their vote does not count and that they must vote again."

On the facts, on the law, on the balance of hardships, the judges of the Ninth Circuit acquitted themselves very well. If politics and law were one in the same as so many casually claim, and continue to claim, after Bush v. Gore, we would be a lesser state and lesser country. The judges correctly held that their review on appeal was "limited and deferential," a concession Judge Diarmuid O'Scannlain secured by his deft questioning of Professor Lawrence Tribe. These are qualities of restraint that the U.S. Senate ought to keep more in mind as it considers presidential nominees for the bench. They are, in short, the qualities that allow "we the people" to govern.

Of course, with this court case behind us — governing — does remain our task. No judge will now relieve us of discerning as citizens whether a recall is prudent. Given the leadership and economic deficits prevalent in this state, it is not a question that can be easily dismissed. Over one million Californians petitioned under law to have the question addressed by democratic means.

The sun shines brighter on the golden republic today because in court, law prevailed over politics, and in so doing, allowed politics to have its appointed day.

— Douglas W. Kmiec is professor of constitutional law and Caruso Family Chair at Pepperdine University.

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