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.