ELECTORAL LAW REVISITED

I’ve seen commentary equating the 9th Circuit decision with Bush v. Gore. The trouble is, the per curiam decision doesn’t say that punch card ballots are unconstitutional, just differential standards of doing manual recounts on them. Indeed, all they say about the voting methodology itself is,

The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. <...> This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.

Unless that dicta is taken as a judicial command for legislatures to come up with a new method? But, given that Florida was using differential voting methods at the time, a fact which passed without comment in a ruling based on Equal Protection, this is rather unlikely.

The Rehnquist concurrence, joined by Scalia and Thomas, which cites “additional grounds” for striking down the Florida decision, also provides no basis for the 9th Circuit’s ruling. Indeed, the concurrence notes that Bush v. Gore was very limited in scope because it involved the selection of Presidential Electors and thus involved the Federal Constitution.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Brett says:

    The 9th Circuit didn’t pull CA’s obligation here out of thin air. CA officials already “decertified” the machines. I find it hard to swallow that the inconvenience of waiting until March should (simply) outweigh the principle of equal protection, which in this instance means better accuracy in vote counting according to CA’s own preferred methods. The 9th Circuit opinion argues that there is at least a chance that such an argument could prevail in future litigation, so a stay is appropriate. Seems reasonable to me.

  2. James Joyner says:

    Brett,

    I haven’t seen anything on the decertification. Did this happen after the November 2002 election in which Davis was elected using these same machines?

  3. Brett says:

    No, before, in September 2001, but the date of decertification was originally to have been effective in 2006 (in order to allow time to change over to the new systems). Then that was moved up to March 2004 by the terms of a consent decree last year, if I’m not mistaken. So Californians aren’t supposed to be using the punch card ballots in March anyway. And the 9th Circuit opinion here notes that if the Secretary of State had only waited a few more weeks to certify that there were enough signatures on the ballot, then the election would have had to have been scheduled for March anyway. So there was a sufficiently plausible alternate scenario (absent court involvement) that would have gotten the election pushed to the March date anyway, where punch cards would already — theoretically — have been withdrawn by Californians themselves.

  4. Brett says:

    Above, “enough signatures on the ballot” should read “enough valid signatures to force a recall.” Sorry!

  5. But as a matter of common sense, a decision that forces us to wait five more months before getting rid of this guy is outrageous. If it could wait, we wouldn’t have signed petitions to recall him, but would have waited until his term ended. That would have been better for the GOP anyway (though not the state).

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