Reinstate the Recall Without Repealing Bush v. Gore

The 9th Circuit, the appeals court that purged God from the Pledge of Allegiance, has now discarded the recall election, creating a possible dilemma for the Supreme Court.

If the nation’s highest court reinstates the recall, it could appear crassly partisan. After all, this is the same Supreme Court that used the constitutional guarantees of equal protection and due process to trump state law and settle the 2000 election for Bush.

In 2000, equal protection was compromised by a recount in selected counties, each of which employed different standards to determine how far a chad had to be punched through to count as a vote.

In the recall case, a 9th Circuit panel of three judges decided that, because some disproportionately minority counties use the same punch-card system made famous in Florida while other counties have more modern voting systems, voters in the former counties are more likely to have their votes not counted.

However, there are flaws in the panel’s opinion that, if the full 9th Circuit affirms it, would allow the Supreme Court to reverse the decision while still adhering to its holding in Bush v. Gore.

First, the Supreme Court can simply recognize that knowledge is power. Conny McCormack, the Los Angeles County registrar-recorder, recently asked, "Who could fail to punch their chad all the way through after all the attention this has gotten?"

While the 9th Circuit claims the punch-card system won’t count over 40,000 attempted votes, that assumes voters are no more aware of the need to completely press the chad than they were in elections prior to the well-publicized Florida fiasco. This assumption bears little relationship to reality.

Second, the 9th Circuit decision, even if correct in identifying the punch-card system’s shortcomings, utterly failed to consider remedies other than postponing the election. Without justification, the court concluded that, "Once the election occurs, the harm will be irreparable because Plaintiffs are without an adequate post-election remedy." Irreparable harm is the high legal standard plaintiffs must meet before courts will grant an injunction. Harm beyond repair cannot be presumed from a violation of equal protection; it must be proven.

Apparently, the 9th Circuit failed to read California election law, which generously provides for election contests and manual recounts. California Elections Code Chapter 12 allows any voter to request a manual recount. Also, any voter can formally contest an election in which "there was an error in the vote-counting programs or summation of ballot counts."

Moreover, California conducts a much more thorough canvassing than Florida before certifying election results. California’s canvass entails a manual tabulation of ballots from a randomly selected 1% of the voting precincts. The manual vote tally results are compared with the computer counts to verify the accuracy of the vote tabulation software. An audit reconciles the number of voters who signed in at each precinct with the number of ballots cast.

Also, the California Secretary of State has adopted a single standard for determining what constitutes a vote in all systems, avoiding different definitions of a vote being used in different counties.

With punch-cards, California requires the chad to hang by only one corner to count. If this standard is too stringent, perhaps disadvantaging voters in counties with punch-card systems, a federal court in a post-election challenge could simply require that a vote be counted with only one or two of the four corners punctured.

Finally, it cannot be assumed that this election will be so close as to make it even statistically possible that the disparity in voting technology could affect the outcome. The relatively small number of votes undetected by the punch-card counting system, especially if supplemented by a uniform manual recount, will probably be inconsequential.

Although there is some abstract harm in the random, unintentional loss of any person’s attempted vote, it is not the kind of grave and concrete harm needed to justify the drastic decision to postpone an election.

In most states, different counties use different voting equipment with different rates of error, making the 9th Circuit decision a prescription for the pre-emptive postponement of nearly all elections. California is in the process of upgrading voting systems in all counties, but the wheels of democracy should not be stopped in the interim.

In 1988, the 9th Circuit declared in Burdick v. Takushi that federal courts should refrain from invalidating state election laws when a reasonable alternative course of action exists. Now, the court has violated this principle by failing to even consider the many post-election remedies available, and the likelihood that the results will make this dispute academic. Consequently, the Supreme Court can reverse this decision solely because it imposes an excessive remedy, while still affirming the fundamental holding of Bush v. Gore that federal courts must ensure the integrity of all elections.