HANGING CHADS REDUX

Lawrence Tribe has an interesting, if strained, defense of the 9th Circuit in today’s WSJ. The piece’s subtitle, “It’s wrong to hold an election if some voters will be disfranchised,” is demonstrably absurd but was almost certainly not written by Tribe, as that’s not really his point. Drawing the analogy with the 2000 election, Tribe says the GOP is being consistent in putting more emphasis on a “purely arbitrary, artificial deadline” than “the fundamental principle that nobody’s vote should count less than anybody else’s in a state-run election just because of where in the state the voter happens to live.” I would note that, in neither case, are the deadlines arbitrary but rather those set by law before anyone knew what impact they might have on the particular contest in question. He further accuses Republicans of

treat[ing] as trivial or as merely speculative the far clearer and greater disparities between the parts of California where votes will be counted with precision and those parts of California where they’ll be counted by an antiquated punch-card method that the secretary of state has already decertified as “archaic,” “obsolete, defective, or otherwise unacceptable.” The state itself has documented the defects in the punch-card voting machinery that is to be phased out by next March.

The evidence assembled by the state in support of its plan to eliminate punch cards by the next election–only to have the recall unexpectedly arise before then–shows that tens of thousands of votes will not be counted at all in the places still stuck with punch-card systems and that these denials will fall disproportionately on poor and minority counties.

I’d be interested in seeing this evidence since it’s unclear to me how “tens of thousands” of votes could be simultaneously countable for the purposes of the study and uncountable for the purposes of an election. I’d also point out, again, that these same facts obtained in November 2002 when Davis was elected.

If the state has decided to use some other voting method starting next March, that’s great. It’s not March yet. The California recall law is a hundred years old and sets forth a timetable for holding election. Ignoring the law in service of an unwritten higher principle–when doing so has the ability to change the outcome of the election far more than the potential errors in the voting process–seems unreasonable to me.

Daniel Drezner has more discussion on this issue, although not directly related to the Tribe piece.

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. JadeGold says:

    Ignoring the law in service of an unwritten higher principle–when doing so has the ability to change the outcome of the election far more than the potential errors in the voting process–seems unreasonable to me.

    Hahahahaha.

    This from a defender of Bush v Gore?

    I’m sure I’m misunderstanding something; perhaps the ‘unreasonableness’ lies in the fact it’s not benefitting a Repug?

  2. Anonymous says:

    The actual ACLU argument came down to this:

    Minorities are too stupid to vote with a punch ballot.

    And the Left is PROUD of this argument?

    The argument is NOT that punchcard ballots are inherently wrong. It isn’t that there could be misinterpretation on how to count the ballot. It’s that one subset of people are too stupid to use them and would therefore “lose” their vote, so we need to postpone the election until other equipment is being put in place.

    And who Trent Lott said was racist?

  3. Biff says:

    I’d also point out, again, that these same facts obtained in November 2002 when Davis was elected.

    James, the ACLU has been unhappy with punch-card voting machines since December 2000, when they filed their original suit. But what were they supposed to do, ask that the November 2002 California elections be delayed until March 2004? That would be completely infeasible. We can all debate whether the recall should be delayed 5 months (I don’t think it should) but it’s clearly much more feasible to do.

    The actual ACLU argument came down to this:

    Minorities are too stupid to vote with a punch ballot.

    No, anonymous, that’s a strawman. The ACLU’s argument is that punch-card systems generate more uncountable votes regardless of who’s using them, but the fact that they are used mostly in counties with high minority populations means minorities will be “discriminated” against. I don’t think there’s any validity to inserting the racial angle into the argument, but that is what they really argued.

  4. d-rod says:

    Minorities are always discriminated against in California. Everyone is a minority. My constitutional right to an election within 80 days may be abridged by some unelected wacko court. They can go fuck themselves.

  5. PoliBlog says:

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