AP reports,

A federal appeals court postponed California’s Oct. 7 gubernatorial recall election, ruling the historic vote cannot proceed as scheduled because some votes would be cast using outmoded punch-card ballot machines.

In what was the last of about a dozen legal challenges to the attempt to unseat Gov. Gray Davis, a three-judge panel of the 9th U.S. Circuit Court of Appeals said Monday it is unacceptable that six counties would be using outdated punch-card ballots, the type that sparked the “hanging chads” litigation in Florida during the 2000 presidential election.

The appellate panel agreed with the American Civil Liberties Union that the voting machines were prone to error and that Davis’ fate could be decided later. By that time, the counties have promised to replace their punch-card machines under a court order in separate litigation.

One wonders if the 9th Circuit en banc or the Supremes will overturn this. It strikes me as rather dubious, since punch-card voting has been permissible for decades now.

Update (1431): The text of the opinion is here. It’s 66 pages, so I’m unlikely to ever read it but I provide it as a resource. Glenn Reynolds, from whom I got the link, likewise hasn’t read it.

Update (1433): Well, somebody has apparently read it. Kevin Drum provides the following excerpt:

The inherent defects in the system are such that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all. Compounding the problem is the fact that approximately a quarter of the state̢۪s polling places will not be operational because election officials have insufficient time to get them ready for the special election, and that the sheer number of gubernatorial candidates will make the antiquated voting system far more difficult to use.

Plaintiffs allege that the use of the obsolete voting systems in some counties rather than others will deny voters equal protection of the laws in violation of the United States Constitution. They seek to postpone the vote until the next regularly scheduled statewide election six months from now, when the Secretary of State has assured that all counties will be using acceptable voting equipment, and all the polls will be open. We agree that the issuance of a preliminary injunction is warranted and reverse the order of the district court.

This position isn’t indefensible. It is, however, a question within the prerogative of the legislature and, for that matter, the California Constitution itself. While I oppose a recall under these circumstances, the polity has demanded one (even if it took paid signature-gatherers to orchestrate the demand). An eight month delay (the two months already allocated plus the six until the next regular election) seems a bit much to ask under that circumstance.

Update (1439): Steven Taylor challenges the statistical analysis of the punch card method, noting that most of the data is based on an inferior version of the technology.

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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.


  1. Steven says:

    Not to mention the method by which Davis was elected in 1998 and re-elected in 2002.

  2. James Joyner says:

    It do boggle the mind.

  3. JohnC says:

    I’m going to be laughing up a storm.

  4. Steven says:

    Indeed, since all elections will have errors (i.e., none can be perfect), then there will always be voters whose votes aren’t counted. I guess that now means, but a 14th Amendment Equal Protection argument that electoral democracy is unconstitutional.

  5. James Joyner says:

    Agreed. One could argue that there is some requirement to minimize bad results by using the best available technology. But I can’t find that anywhere in my copy of the Constitution.

  6. BigFire says:

    1. March is California Democrat primary, it will draw more Democrat voters.
    2. It’s 6 month away, it’ll give illegal aliens more time to get their driver license and register to vote.
    3. Illegal’s right to vote must be protected.

    Or at least this is what the 9th circuit is thinking.