Debra J. Saunders

Elections attorney Chip Nielsen warned that the replacement ballot systems could be worse than punch cards -- because voters and registrars aren't familiar with them. Lowenstein agreed that the new ballot systems could be as problematic as punch cards.

This is another Ninth Circuit horror story. Consider how in 1996, federal judge Thelton Henderson -- a former ACLU board member -- unilaterally overruled Proposition 209, which ended racial preferences in state hiring, contracting and admissions. Proposition 209, which was approved by voters, was based on 1964 federal civil rights law. A Ninth Circuit panel overturned the ruling on appeal. It should act likewise -- and quickly -- with this can of worms and spare California from the U.S. Supreme Court stepping in. As Nielsen noted, this decision spells "pure chaos."

While the ruling noted the need for "orderly" elections, it in itself is a recipe for disorder.

Should counties throw out the absentee ballots of those who have already voted -- or should they let every vote count? No one knows.

On the very first paragraph of the 66-page ruling, the Ninth Circuit judges misquoted Bill Jones, who never said the punch-card system was "unacceptable." (He said it was outdated.) They took a decades-old voting mechanism that helped elect the presidents who appointed them and decided that it was so unreliable as to justify their decision to postpone a scheduled election in which some citizens already had voted.

If punch ballots are so "unacceptable," they should recuse themselves, having won their place on the bench through such a discredited system. But if it's good enough for them, it's good enough for the recall.

Debra J. Saunders

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