The 9th Circus Court of Appeals

Posted: Sep 17, 2003 12:00 AM

LOS ANGELES -- All that was lacking to complete the awfulness of California's recall was supplied when the 9th U.S. Circuit Court of Appeals shoved its oar in.

Until judicial vanity intruded, there were three authors of California's suffering -- the governor, the Legislature and the public that elected both and now thinks of itself, in the modern American manner, as a blameless victim. The public has repeatedly used the initiative process to mandate spending that prevents sane budgeting. And the public has used this recall to throw a tantrum about what it, the public, has wrought.

The panel of three 9th Circuit judges, the left wing of a left-wing court, illustrates the axiom that the pursuit of perfection prevents achievement of the satisfactory. The court declares it unconstitutional for the recall election to use punch card voting that was used when Gray Davis was elected less than 11 months ago.

The judicial panel has a foreign policy: It says voting perfection is needed ``when we are attempting to persuade the people of other nations'' to value elections. Worried that ambiguous chads might cause perhaps 40,000 voters' preferences to go unrecorded, the panel threw into doubt the status of 100,000 absentee ballots already cast. The panel is stoical about the cost, to the state and nation, of prolonged paralysis in a state with world's fifth-largest economy. And about the cost of rearranging the recall voting. And about the impossibility (according to Los Angeles county's registrar-recorder) of any voting machines coping with 135 gubernatorial candidates and the many candidates in various primaries on March 2.

The 9th Circuit panel erroneously overextended the U.S. Supreme Court's application of the equal protection doctrine to disparities of voting methods. In Florida, the Supreme Court's concern was different methods of counting identically marked ballots already cast.

Nevertheless, the Supreme Court probably should leave bad enough alone. Letting California ferment as a cautionary example of vulgar democracy would be best for California. The more unseemly the recall becomes, the better are the odds that Californians might shrug off self pity over their self-inflicted sufferings and make a wise choice, for a change.

California resembles Britain in 1975, when bad government by both parties --meaning bad decisions by British voters--had brought that nation to the brink of bankruptcy. Britain was then described, as the Ottoman Empire was in its dotage, ``the sick man of Europe.'' California is the sick man of the Republic.

But Britain's revival was one choice away. In 1979, voters elected someone who lacked warmth but possessed a plan as radical as Britain's condition required -- Margaret Thatcher, who, it was said, could not see an institution without swatting it with her handbag.

Only one California candidate, State Sen. Tom McClintock, is, like Thatcher, a ``conviction politician'' prepared to discipline the nanny state. He has a Thatcherite charm deficit but -- perhaps these attributes are related -- determination to summon California, as Thatcher summoned Britain, up from infantilism.

He has her determination to revive what she called ``the vigorous virtues''-- entrepreneurship, deferral of gratification, individual initiative, personal responsibility in making appetites conform to resources. Together, these aptitudes can be called adulthood.

Neither Davis, a proven failure, nor the blazingly undistinguished Lt. Gov. Cruz Bustamante, nor Arnold Schwarzenegger, an already stale novelty, seems to have a clue about how to attack California's problems. McClintock, lacking both money for ample paid media and charisma to attract sufficient unpaid media, is nevertheless as buoyant as an incurably unflamboyant person can be.

In an interview three hours after the judicial panel ruled, McClintock was characteristically blunt in disdaining the ruling: ``We held elections on schedule during the Civil War.'' And he expressed four reasons for optimism:

Schwarzenegger's support seems to have hit a ceiling under 30 percent.

Voter interest is so high -- even without Schwarzenegger participating, the recent candidates' debate led, he says, the Nielsen ratings in Los Angeles and San Francisco -- McClintock can get his message out. In 2002, running statewide for controller, he was outspent 5-1 but lost by just three-tenths of 1 percent.

McClintock has risen from 8 to 13 to 18 percent and can reach a tipping point -- ``I don't know where it is, but I'll know it when I see it'' -- where ``pent-up'' conservatives now gritting their teeth and supporting Schwarzenegger will switch to him.

The later the vote, the more Davis will be mired in making unpopular budget choices.

Perhaps. But if Davis is recalled he probably will be replaced by a governor who received substantially fewer votes than were cast against the recall. Davis and the California voters who have chosen him twice deserve each other, unless and until the voters choose Thatcherite medicine.