Analysis: Fear of chad derails recall

By HIL ANDERSON   |   Sept. 15, 2003 at 6:54 PM
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LOS ANGELES, Sept. 15 (UPI) -- The appeals court ruling that rattled California politics Monday could be seen as an aftershock of the great hanging-chad earthquake in Florida that held up the final resolution of the 2000 presidential election for more than a month.

The 66-page ruling that ordered a postponement of the Oct. 7 recall vote was based largely on the Supreme Court ruling in the 2000 presidential race that resulted in the spectacle of the Florida recount and the eventual election of George W. Bush to the White House.

It was for that reason that Mark Rosenbaum, legal director of the American Civil Liberties Union in Northern California, predicted that there would be no reversal of the 9th Circuit Court of Appeals because it was the current Supreme Court that had set the precedent in the now famous Bush vs. Gore case out of Florida.

"You couldn't overturn this decision without making the Bush-Gore (ruling) a laughing stock," Rosenbaum told a news conference. "I don't think that this will be regarded ... as a liberal decision; it's a patriot's decision."

He added confidently, "I don't think the Supreme Court will turn tail on this one just because it is a case involving a recall."

In a strongly worded decision by a three-judge panel, the appeals court agreed with civil rights groups that it would be a violation of constitutional equal protection provisions to hold the election next month while six California counties were still in the process of converting from punch-card ballots to electronic voting machines that have a lower error rate.

"Plaintiffs' claim presents almost precisely the same issue as the court considered in (the Bush decision), that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause," the judges wrote. "In Bush, the Supreme Court held that using different standards for counting votes in different counties across Florida violated the Equal Protection Clause. The plaintiffs' theory is the same, that using error-prone voting equipment in some counties, but not in others, will result in votes being counted differently among the counties."

In its 66-page decision, the 9th Circuit panel referred to the Supreme Court Bush decision, which was based on the 1966 ruling in the Harper vs. Virginian Board of Elections case.

In the Bush decision, the high court cited the Harper case: "The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having 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."

The Republican backers of the recall were flabbergasted that the 9th Circuit, which they immediately maligned as the most overturned appeals court in the nation, would block a constitutionally protected and scheduled election.

They have a lot riding on the October election date since the conventional wisdom holds that a delay until next spring would give Gov. Gray Davis another four months to tidy up the state's fiscal affairs and allow the ire of the electorate to cool off.

Conservative Bill Simon, who lost to Davis in 2000, spoke for many recall supporters when he called the ruling "an outrageous interference with the rights of California voters and a transparent attempt to thwart the will of the people."

A lower court judge had refused to block the recall because he felt it would indeed thwart the will of the people, particularly the 1.6 million voters that had signed the recall petition.

While many Californians no doubt would prefer to see Davis out of office sooner rather than later, such purely political concerns were trumped by the 9th Circuit's determination that the likelihood that voters in six counties might have a larger percentage of their votes going uncounted because of the inherent flaws of punch cards was the greater concern.

"In assessing the public interest, the balance falls heavily in favor of postponing the election for a few months," the court said. "The choice between holding a hurried, constitutionally infirm election and one held a short time later that assures voters that the 'rudimentary requirements of equal treatment and fundamental fairness are satisfied' is clear."

The ACLU, a lead plaintiff in the case, contended that the six counties still switching over to electronic voting were among the most populated in the state and were home to a large number of minority voters. The lawsuit argued that going ahead with the Oct. 7 election would risk the votes of an estimated 40,000 voters based on an error rate of 3 percent for punch-card ballots; the new electronic devises have an error rate or 1.0 percent to 1.5 percent.

California Secretary of State Bill Jones -- a Republican who ran for governor himself in 2000 -- had declared in 2001 that the punch-card voting systems were unreliable and obsolete. They were to be scrapped throughout the state in time for the March 2004 California primary.

"The other side has to answer the question, 'How can you hold an election when you know going in that because of the unacceptability of the machine, poor people and people of color are going to have a half or third of a chance of having their votes counted as white or more affluent individuals,'" Rosenbaum demanded to know. "That's a principle that every court ... has subscribed to."

Recall opponents vowed to go straight to the high court rather than to appeal the ruling to the full 9th Circuit, likely with the argument that the postponement would be a denial of the will of the Californians who signed the recall petitions.

It seemed Monday that the high court would need some convincing legal arguments to overturn the 9th Circuit's decision and order the recall to go on as scheduled Oct. 7 over the objections of civil rights advocates and the court's own precedent.

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