Punch-drunk law

Posted: Sep 02, 2003 12:00 AM

The legal eagles in charge of the American Civil Liberties Union obviously have decided to ditch the pretense that they care about all Americans' civil rights. Only schoolchildren -- and very naive ones at that -- believe that pose anyway.

So the ACLU has set out to destroy an election in order to save voting rights.

Joining with other left-leaning groups, the ACLU filed suit to stall California's Oct. 7 recall election. Six counties -- including Los Angeles, Sacramento, San Diego, Santa Clara, Solano and Mendocino, representing 44 percent of the state's voters -- still use punch-card ballots. The ACLU brief argues that because those counties contain a higher-than-average percentage of minorities, and because minorities experience a higher level of voting irregularities than non-minorities when using punch-card systems, the recall election would "discriminate against minority voters."

The ACLU's remedy: Stall the recall until March 2004, when all 58 California counties are supposed to be punch-card free.

Or as Gov. Davis' team apparently believes: Stall the recall until March 2004, when support for the recall should have run out of steam.

After U.S. District Judge Stephen Wilson in Los Angeles turned the ACLU down, the civil litigators went to the U.S. Court of Appeals in San Francisco (a k a the infamous 9th Circuit) to complete its anti-voter handiwork.

The 9th Circuit Court is known for its blatant disregard for legal niceties when it comes to decisions that grate against the court's rarefied politics. But postponing the election is bad for government -- whether you support or oppose the recall.

The longer the recall election campaign lasts, the longer uncertainty plagues state finances and keeps California from finding a fixed path.

Attorney Chuck Bell, who represents recall backers, believes the ACLU suit is results-oriented -- that is, filed not for the principle but simply to delay the recall election and take the wind out of its sails.

Paul Ryan of the good-government Center for Intergovernmental Studies doesn't believe that the ACLU is suing in a bald attempt to foil the recall. To Ryan, the punch-card system is inadequate, presenting the danger of a Florida-style debacle if a tight race requires a recount.

Two problems: First (and this is a biggie), Gray Davis was elected governor under this system, with major counties using the punch-card ballots. If the old system was so flawed and unfair, the ACLU should have filed suit to stop the November 2002 election, which Davis says he won "fair and square" -- with 47 percent of the vote.

Second, as Ryan admits, new techno-ballots could have big problems, too.

The ACLU brief explains that it couldn't sue to stall last November's election because a court victory "would give rise to a full-fledged constitutional crisis." Well, the same logic applies for a recall.

The ACLU brief also argues that the court could let the recall go forward but postpone a vote on Proposition 54, the initiative that would prohibit the state from gathering racial data to protect voters of color. Only in ACLU litigators' dreams are the judges going to rule that punch cards discriminate in an election for a ballot measure but not for the recall.

What's the rationale here? The ACLU argues Proposition 54 is "racially charged."

Again, the ACLU doesn't even bother to hide its political agenda.