CA RECALL DECISION: LEAVE NO VOTER BEHIND!

Read the 9th Circuit decision delaying the CA recall vote here (PDF file) (link from Rick Hasen at Election Law, who has promised to comment on the ruling).

Here are three things I like about this opinion, and one observation:

1) It takes Bush v. Gore seriously as an extension of the landmark Warren Court era voting rights cases. If you accept the claim made by the court here that research shows that punch card ballots are more error prone than the other methods that California is using -- a fact that California officials themselves signed on to when the agreed to decertify the machines and remove them from use -- then it really is hard to argue that voters who use those machines will have their votes weighted equally compared to those who do not use those machines. The Supreme Court would have a good retort, perhaps: what the Court called the "standardless" recount procedures used in Florida are a lot worse with respect to fairness than the use of different voting machines in the present CA case. But this obviously raises the question of how much error is acceptable in voting tabulation. If Californians already think that the error rates resulting from punch card machines are unacceptable, then it seems reasonable to argue that the courts should see those rates as unacceptable as well, or at least that the question doesn't clearly admit of a decision at this stage of the game.

2) It takes the international situation seriously. On page 64, the penultimate paragraph of the opinion reads as follows:

In addition to the public interest factors we have discussed, we would be remiss if we did not observe that this is a critical time in our nation’s history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. A short postponement of the election will accomplish those aims and reinforce our national
commitment to democracy.

This may seem like mere flowery rhetoric, and it's not necessarily clear that courts are required to care about these things. But I am glad that they do. With respect to segregation, many federal courts were clearly influenced by the cold war era arguments that American apartheid made a mockery of our attempts to persuade foreign countries that a capitalist democracy could protect the rights of racial minorities. Here, similarly, while the present administration has advanced the argument that free and fair elections are a primary U.S. export product, even at the point of a gun, it seems that we should at least get our own house in order. The 2000 election cases saw no such geopolitical urgency and it sure would have been nice if courts had seen one. The concept of "public interest" here is indeed subject to disagreements, and someone like Robert Bork might see this as a classic case of judicial interference in the political process based on elite values of consistency to principle. Nonetheless, I at least can be proud of a judicial system that tells us to live up to our own ideals.

3) The political forces evoked by the opinion are quite strong. You've got the exporting of democracy argument. You've got an argument that the hurried recall election will disenfranchise those serving the national guard, who didn't have enough time to apply for absentee ballots before deployment and who didn't even suspect that they might have the opportunity to vote in the recall election. You have the invocation of Bush v. Gore, a case that conservatives are supposed to defend and, in responding negatively to this opinion, the reach of which they would either have to narrow (a suspicious and judicially activist move, arguably) or the principles of which they would seem to have to reject (especially the idea that votes should be counted equally).

4) That's not to say that there aren't things here that could be attacked, of course, aside from the result. Read this Washington Times article, for example, which has now renamed the 9th Circuit the "Controversial 9th Circuit." I have to admit, though, that I don't quite understand the conservative criticisms of the opinion intimated in the article. Yes, there will be some administrative inconvenience. That's also the case with respect to a lot of decisions that conservatives like, and it's at least arguable that there will be less inconvenience if the vote is postponed until March, when polling places will be better prepared. Yes, there will be additional uncertainty. But isn't it better to reduce the uncertainty now, before the votes are stacked in piles and people are complaining about unfair procedures? Unless, of course, conservatives simply think that they can win this one and shout down those who complain.