Tuesday, September 16, 2003
California Recall: The 9th Circuit Court of Appeals (surprise!) called a halt to the recall election slated for Oct. 7. The most-reversed court in the land has determined that the same voting devices that gave us Gray Davis last year are too flawed to be used to recall the aforementioned Davis.
Scott Ott over at Scrappleface.com leads with the headline: "9th Circuit Court Reverses Elections Since 1964."
The decision by a three-judge panel will be reviewed by a larger group of judges -- but there's no guarantee commonsense will prevail.
As a judge, the sign that you're way off the reservation is if The New York Times editorial page wholeheartedly endorses your position.
Both the judges and the Times argue that punchcards are inherently faulty and using different voting methods a violation of the equal protection clause. In the Times' words:
Voters in the counties stuck with punch cards are far more likely than other Californians to have their ballots thrown out. In Bush v. Gore, the Supreme Court stopped the Florida recount, saying it violated equal protection to have recount methods vary by county. By the same logic, as the Ninth Circuit noted, counties should not use ballots with significantly different reliability rates.
The recount in Bush v. Gore wasn't stopped because of the unreliablity of the punch-card ballots, but because of the unreliablity of humans trying to determine "intent" on ballots designed to be counted by machines.
Ever since Florida 2000, poll workers and concerned voters have been extra-vigilant regarding the infamous hanging chads. When I voted in the primary and general elections last year, not only did I closely examine my ballot to make sure I was properly recording my vote, but before depositing my ballot in the box the poll worker wanted to check the ballot to see if there was the infamous hanging chad.
I've used punch card machines in both California and Washington state. As a reporter, I've watched as ballots were counted by the machines and the care that is taken by county registrars in the process.
The other problem with the 9th Circuit's decision: It requires the federalization of the elections process. To follow the 9th Circuit's logic, different voting mechanisms from state to state would also disenfranchise some voters. If Alabama uses optical scanning ballots and Florida uses touch screens, with different reliablity rates, then some greater proportion of voters in one state will have their votes "thrown out." (Votes are invalid if the voter fails to follow instructions or doesn't exercise proper care. To use the term "thrown out" suggests an arbitrary, capricious and malicious action -- that just doesn't happen -- except maybe in Chicago.)
Just what is "significantly different" anyways? With an election as close as the presidential race in 2000 was in Florida, a difference of one tenth of one percent in the reliability rates could be the difference between President Bush and President Gore.
What the court is appearing to requires is a perfect election process. Unfortunately, they're all run by less-than-perfect humans -- and they know it. So why the delay? Politics. But you knew that already.
By the way, every voting device has its problems. (Full disclosure: I voted in San Luis Obispo County in 1994.)