The infamous Ninth Circuit of the U.S. Court of Appeals in San Francisco ruled Monday that the very "punch-card" ballots that were good enough to elect Gray Davis governor in November aren't good enough to be used in an election that might recall him.
The three-judge panel's rationale: An Oct. 7 recall would violate the 14th Amendment of the U.S. Constitution because six counties representing 44 percent of the voters would use punch-card ballots, which are deemed less reliable than other ballots. The ruling noted that "the affected counties contain a significantly higher percentage of minorities than the other counties" and cited a study that found that minority voters had more problems voting using punch cards than white, non-Hispanic voters.
The panel ruled that the recall election should be postponed until March 2, 2004, when all counties should have replaced their punch-card systems. The judges also noted that former California Secretary of State Bill Jones, a Republican, "officially" deemed punch cards to be "unacceptable."
Wrong, bristled Jones on Monday. Jones noted that after Florida 2000, he pushed for California to modernize its balloting systems by 2006. The ACLU and other organizations sued the state to dump punch-card ballots more quickly. A federal judge in Los Angeles picked March 2004 as the deadline -- and the parties agreed.
"If I had thought these systems were so egregious, I would not have" suggested keeping punch cards until 2006, said Jones. He asked: If the ACLU believed that punch-card ballots disenfranchised voters, "why didn't they appeal that decision" for the 2002 elections?
The answer: As far as I'm concerned, the issue wasn't replacing the punch cards. It was that the ACLU wanted to muck up the recall election, and the Ninth Circuit wanted to help.
As UCLA law professor Daniel Lowenstein noted, "There are many elections scheduled for November 2003, including a recall election in the city of Lynwood" (which lies in one of the six counties, Los Angeles) "and I'm not aware of anyone who's objected to the use of punch-card ballots in those systems."
A former aide to Jerry Brown when he was secretary of state, Lowenstein described the Monday ruling as "one of the worst instances of judicial interference with elections that I've ever seen, and I've been active in this field for about 30 years."
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.