Among the many lawsuits filed during the unprecedented California gubernatorial recall election, the one that garnered the most attention was the case challenging the use of punch card voting in six California counties. In that suit, plaintiffs argued that the election should be delayed because the allegedly higher error rates of punch card voting compared to other systems in California denied those voters in punch card counties their equal protection rights under the California constitution and also violated the Voting Rights Act. Professor Hasen argues that the original Ninth Circuit decision delaying the election until punch card voting could be eliminated was correct, and the later en banc decision allowing the election to go forward with the selective use of punch cards was unfortunate, though understandable given the closeness of the recall election. Hasen argues that under the Supreme Court's decision in Bush v. Gore, the selective use of punch card voting constitutes an equal protection violation. The en banc court did not reach the issue. Hasen concludes that the en banc decision does not preclude other plaintiffs from bringing similar challenges in the future, and that the window remains open for voting reform lawsuits until the Supreme Court interprets Bush v. Gore otherwise.
KEYWORDS: elections, election law, recall
On Sept. 23, the 9th U.S. Circuit Court of Appeals, sitting en banc, unanimously reversed an earlier unanimous three-judge panel decision that delayed the Tuesday gubernatorial recall election until six California counties using punch-card machines could replace those machines with better voting technology. Southwest Voter Registration Education Project v. Shelley, 2003 DJDAR 10832 (9th Cir. Sept. 23, 2003). The latest that replacement would have come is March, when the state, under an earlier consent decree in Common Cause v. Jones, 213 F.Supp.2d 1110 (C.D. Cal. 2002), had agreed that the decertified punch-card machines would be taken out of service.
Presumably, the state could have mandated that those six counties use an alternative system, such as technologically simple and very reliable paper ballots, in an election held well before March.
The en banc decision reinstating Tuesday's election is unfortunate because it means that we will be going into the election knowing that systematic geographical disparities in the ways that votes are counted could affect the outcome of the election with no effective post-election remedy, despite the court's suggestions to the contrary.
Although the en banc court erred, the outcome was understandable given the reliance of candidates, election officials and others on the Tuesday date by the time the en banc court decided the case.
On the bright side, the opinion could have been much worse. At least the court left open the possibility of future challenges based on gross disparities in vote counting technology.
The following hypothetical illustrates this point: Imagine that California had perfect technology to cast and count votes but that the Legislature had passed a law requiring that 1.5 percent of the votes in six counties comprising 44 percent of the state's population, including many minorities, will be...