Why the Eleven-Judge Ninth Circuit Panel Should Affirm The Original Panel Decision to Postpone the California Recall

The panel reached that holding because evidence showed that using the current punchcard ballot machinery would mean that thousands of votes would not be counted at all - and the bulk of those lost votes would come from predominantly poor and minority communities. (Counties that tend to have richer voters currently use optical scanning, which results in far fewer ballots being tossed out.)

Even before the panel decision was issued, these problems had already caused the Secretary of State to decertify the punchcard election machinery as "obsolete, defective, or otherwise unacceptable." He had also required all California counties to replace their punchcard systems by March of next year.

Today, a larger, eleven-judge panel of the Circuit will hear argument as to whether to affirm the original three-judge panel's decision. It should do so.

In this column, I will explain some of the major criticisms of the original appellate decision. I will also argue that each is overstated or misguided.

The First Criticism: This Is a Matter For California, Not the Federal Courts

To begin, some have asked, How can the federal Constitution say anything about this Californian matter? The answer is that the Fourteenth Amendment's guarantee of equal protection of the laws is meant to apply to state law - and that includes California law.

In addition, Bush v. Gore - and a long string of earlier precedents, as well - have made clear what the equal protection guarantee means in the voting context: "[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."

That's exactly what California would have done, had it allowed some counties to have inferior voting machines, and others to have superior ones. In demanding equal protection of the law, the U.S. Constitution demands equal voting processes as well.

The Supreme Court precedents reiterating this principle go back at least as far as 1963's Reynolds v. Sims. There, the Supreme Court held that "the weight of a citizen's vote cannot be made to depend on where he lives."

Moreover, those who question the federal intervention should consider that not only the federal courts, but also the California Secretary of State, had found the punchcard machines severely deficient.

The Second Criticism: Bush v. Gore Is Erroneous And, In Any Case, Limited

It's important to stress that one need not be a fan of Bush v. Gore to be a fan of the Ninth Circuit three-judge panel's original decision. After all, the legal terrain has changed. Whether or not one agrees with Bush v. Gore, it is on the books.

Thus, those critics who take issue with the panel's application of Bush v. Gore are sometimes asking the wrong question. The question that must be asked now is not, was Bush v. Gore a good decision? It is whether, since that decision is law, it should be applied fairly and evenhandedly to all. And the answer plainly is yes.

But how far does Bush v. Gore reach? The Court itself said its "consideration is limited to the present circumstances." Does that mean it says nothing about elections for state office? Or decisions by state executive officials?

Some critics have argued that is the case, but they are wrong. The Bush v. Gore Court consciously framed its holding in terms of general applicability. It did not exempt any of these scenarios. And its logic plainly extends to them.

For instance, it emphasized that "[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value on person's vote over that of another." It also stressed that "'[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.'" And it drew from nonpresidential election cases such as Harper and Reynolds without ever once mentioning that there might be a different standard in the presidential election context.

Nor does the Equal Protection Clause itself - or the other decisions interpreting it - draw any of the distinctions critics would like to impose. Even in the dreadful 1883 Civil Rights Cases, the Court explained that the Fourteenth Amendment extends to a whole host of types of equal protection denials - in the Court's words, "state action of every kind." The Court made clear that it "provide[s] modes of redress [not only] against the operation of state laws, [but also against] the action of state officers, executive or judicial."

The Third Criticism: Bush v. Gore Applies to Manual, Not Machine, Counts

The Bush v. Gore Court could have written a decision that centered its holding on its distrust for the manual recount process, as applied by partisan county officials. But it didn't. (If it had, all the states would have had to convert to machine recount processes after the decision came down.)

It didn't describe the problem as one where human officials deliberately tried to influence the outcome of votes. Rather, it saw the problem as one of voting strength: As noted above, it condemned in the strongest possible terms "'[t]he idea that one group can be granted greater voting strength than another.'" Because different counting standards were employed, it reasoned some counties had more voting power than others.

The core idea of Bush v. Gore, as with Reynolds v. Sims, is that a State cannot value the votes cast in one county more than those cast in another. And that is exactly what California's voting machines do.

The Bush v. Gore decision isn't about a way of counting. It's about a principle of equality.

Why Bush v. Gore Was a Harder Case Than This One

It is also worth noting that Bush v. Gore was actually a much harder case than this one.

After all, in the presidential election, the Court had to speculate as to whether varying manual recount standards would create a geographical disparity in the right to vote. In contrast, in the recall suit, the evidence is clear that the punchcard systems will lose thousands of votes in the poorer and more heavily minority counties.

And in Bush v. Gore, the Justices also had to contend with the fact that a delay in the final tallies could have deprived some states of having electors at all - a drastic disenfranchisement based on geography.

Finally, in Bush v. Gore, the Justices had to think about fashioning a remedy in a circumstance where the election had happened and the results reported, converting their decision on the merits of the lawsuit into a decision for a particular candidate. Here, of course, the election has yet to occur.

The Fourth Criticism: Postponement Has First Amendment Harms

Some - most prominently, the brilliant Yale Law professor Bruce Ackerman - have argued that the First Amendment should deter courts from delaying elections, because to do so disrupts settled expectations. That is, candidates may have spent, spoken, and strategized based on the original election date; now it is moved to many months in the future.

If that were the case, then the Ninth Circuit would be presented with a classic liberty/equality clash. But in fact, there's no clash here at all. This view of the First Amendment does not fit with Supreme Court precedent.

That precedent does not see the right of citizens to speak and vote as in tension with the duty of courts to ensure that elections respect equal voting rights. The candidates may have had expectations, but so do the voters: They expect that their votes will be counted, and will be counted equally. The Ninth Circuit panel was right to satisfy that basic expectation - one that is the essence of democracy.

The First Amendment does not guarantee an election process free from all change. Nor does it guarantee one in which voters can vote for whomever they wish in the manner that they wish. Indeed, if it did, as the Supreme Court has pointed out in Burdick v. Takushi, all election codes would be unconstitutional.

This view of the First Amendment, moreover, would set back civil rights law by decades. Federal courts have repeatedly used their power to enjoin elections, or even to order new ones after faulty ones have taken place, out of concern for voting equality.

This First Amendment theory would also make much of the Voting Rights Act unconstitutional. The Act requires a delay in proposed election laws until they are "precleared" with the Justice Department.

Finally, if courts could not change election laws once campaigning had begun, courts would be stripped of their well-established power to review all sorts of election-related legislation. (For example, as Michael Dorf recently discussed in a column for this site, the Supreme Court is currently examining the constitutionality of the most recent federal campaign finance reforms.).

In sum, the First Amendment interests that militate against postponement of the recall election are slight at best. (Giving candidates months more to campaign, speak, and debate than they otherwise would have had, hardly seems a giant blow to free speech!) Moreover, they are dwarfed by the gaping equal protection problem engendered when 40,000 or more people are deprived of their right to vote.

The debacle of Florida's Election 2000 happened in part because the State and its federal and state courts did not think carefully enough about voting and voting systems before the election. Admirably, the Ninth Circuit's three-judge panel, in its recent decision, refused to repeat that mistake. Instead, it made sure to prevent a constitutional violation in advance of the vote itself - rather than trying to fix the problem afterward.

It would be great if the election could happen soon - perhaps even October 7 if the State can obtain the proper machinery. But if that is not possible, then the election should be delayed, not necessarily until March, but until a time when the State can obtain the machinery.

Presumably, the World's fifth or sixth largest economy can move quickly on that. And if they cannot, we should keep in mind that equality is more important than mere alacrity. As the Supreme Court put it in Bush v. Gore, "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."