SACRAMENTO, CALIFORNIA — The judges who just threw out California’s recall election are liberal and off the reservation. It’s not that their decision is implausible. It’s a good read, and what they say cannot be summarily dismissed. They relied on considerable precedent for equal protection, and on Bush v. Gore.
But is this case factually distinguishable from Bush v. Gore? I think so. The original federal court judge — Stephen Wilson — ruled that the will of California voters was to have the recall election as soon as possible. Even these judges conceded this is an important decision. But they decided to postpone the election for a few months, anyway — until the March 4 presidential primary. By that time, all the punch-card machines will be replaced. There was a consent decree previously allowing for that phase-out.
But does the Constitution demand the use of the best available technology? These judges argue that equal protection requires the phase-out of punched-card machines. They say the present system provides insufficient assurance of fairness.
The court argues that six major counties, including the populous Los Angeles County, will be using the old chad system. In other words, this would deny people equal protection, because voters in these counties would have a higher error rate than people in other counties with more modern equipment.
The other side (California’s attorney general) argues that the postponement of the recall election will be a great hardship for California. Today’s decision argues that California should defer to the feds, based on equal protection.
But this three-judge panel decision has a good chance of being overruled by the full Ninth Circuit by as early as Tuesday or Wednesday. Remember, a panel from this court threw out the infamous flag opinion, and that embarrassing decision was quickly overruled by the full Ninth Circuit.
Even if the Ninth Circuit does not act, this will go to the circuit Supreme Court justice. That’s Sandra Day O’Connor, and she’s not around. Word is that Antonin Scalia could take her place.
The problem is speed. All this must be done quickly. I’m betting the decision is overruled by Wednesday, at the latest. And, in the interim, the state will get permission to keep processing absentee ballots and other election-prep work.
I’m not a lawyer. But I’ve been involved in lots of elections and court cases. Judges must tread very carefully when it comes to elections. They don’t throw people out of office. They don’t schedule new elections. They don’t overturn elections. And they don’t postpone elections.
Unless there’s something crucial at stake. After all, they are setting aside the California state constitution — and an election that’s virtually impossible to postpone. The ballots have been mailed. Some voters have already sent in their absentee ballots. Indeed, on Friday, county registrars were asked to send data to the Court on just how many they have in.
Gray Davis was elected last year with machines that use punch-card voting. I’ve participated in hundreds of such elections here in California. Why should he not stay in office, or be thrown out of office, on the same system? There are problems with any election system. And no one can predict if the March 2004 system will work smoothly.
One problem is that the state of California officially conceded in court papers that the current system doesn’t work. That compromises the state attorney general’s election green-light argument. The state took the position that a new system would be fully in place for the March 2004 election. That’s why these judges postpone the election until then.
And a March 2004 election virtually assures Gov. Gray Davis stays in office. By that time, the political car chase will be over with. Sure, voters would be revolted by this decision for awhile, but how long can the spectacle go on? Will we be treated to Arnold campaigning at Thanksgiving? Then at Christmas? How about New Year’s Eve? Valentine’s Day?
Will the next court decision require voters to be able to spell Arnold’s last name?
And what if the recall is in March 2004?And will the recall just totally keep off the Democrat presidential primaries in early 2004?
The real problems here are not with punch card voting and chads. They are with the absurd ballot. It’s too long. It has too many names (135). It is seven pages. The list is not alphabetical. But it’s still legal.
The reality is that many voters under the current system will vote for more than one candidate. And their ballot will be invalidated. Will some of those voters be disproportionately dense? Yes. Will they be disproportionately Democrat? Possibly. But I’m not yet sure how a new voting system changes existing California law with respect to a long, unalphabetized ballot.
Federal Judges Pregerson, Paez, and Thomas (all appointed by Democrats) are members of a panel with a very high record of being reversed. The losers in today’s decision (a 66-page unanimous decision) can go straight to the U.S. Supreme Court but probably will go right to the entire 9th Circuit. This an en banc.
If Justice O’Connor were around, she might ask the full Supreme Court. But I don’t think Scalia would. And, I don’t think it will ever get to them.
All of this reinforces the Democrat right-wing-conspiracy argument. That the recall is an unfair dirty trick to undo the will of the electorate, when Davis was reelected last November against Bill Simon. Is this Bush v. Gore revisited? Today’s decision is a fitting sequel to yesterday’s visit by Bill Clinton to the First AME Church in Los Angeles.
One final thought: All this postpones yet again closure on getting Tom McClintock out of the race. It reinforces the volubility and unpredictability of this whole recall election. Anything can happen.
— Arnold Steinberg is a California-based political strategist.