Three Blind Mice
At the direction of the American Civil Liberties Union, a wholly owned subsidiary of the Democratic Party, the Ninth Circuit has just ruled to disenfranchise the entire state of California. The basis for this ruling is a little-known provision of the Fourteenth Amendment, which reads:
No state shall … use punch card ballots… in any specially-called election against a Democrat incumbent. Nothing in this section shall preclude such state from using punch card ballots to re-elect said Democrat in a regularly scheduled election.
The three judges on this quaint little “court” have stayed their own ruling for seven days to allow time for appeals. Maybe the Vegas bookies can fix the odds as to how many days it takes the real court to swat this one down.
UPDATE: Prestopundit has more.
UPDATE x2: Roy Rivenburg of the L.A. Times has quoted this entry in tomorrow’s “Recall Madness” column today.
September 15th, 2003 at 12:18 pm
Amazing!
Why didn’t the ACLU, feel the same way in the last 2 elections where Gray Davis, a Democrat, was heavily favored to win?
As a Democrat, I feel embarrassed by the double standard displayed.
They only filed because Davis is in grave danger of having his Ass handed to him on a platter.
They care NOTHING for the voter.
September 15th, 2003 at 12:33 pm
Kiril – probably because the state of california hadn’t decertified the voting system in question at the time those elections were held.
Well, sort of. Your question is a good one with respect to the 2002 elections; the decision to phase out the pollstar systems was made in 2002, effective 2004.
September 15th, 2003 at 1:45 pm
This case was decided under the equal protection clause, not under SOS certification per se. If this election is “unconstitutional,” so was the last, and the last before that, all the way back to the first election in which at least one county used anything other than punch cards.
September 15th, 2003 at 2:38 pm
XRLQ – sort of. If *all* of the counties used punch cards, there was no equal protection problem. If *some* did and some didn’t, then this decision argues there *was*.
But fundamentally I don’t see any way to reconcile the supreme court’s decision that using different recount rules in different counties deprived voters of equal protection because of inconsistent policies with the state’s argument that wildly inconsistent error rates between counties do not deprive voters of equal protection.
You can have one or the other. But having both requires abandoning all logic.
September 15th, 2003 at 2:59 pm
The Supreme Court never ruled that “using different recount rules in different counties” deprived voters of equal protection, only that a statewide order mandating different rules for different counties violated equal protection. If a state official orders some counties to use punch cards and orders others to use something else, then a colorable argument for discrimination can be made. But if counties are left to their own devices, there’s nothing “discriminatory” about the fact that some opt for punch card ballots while others do not.
Even if I were to buy the bogus “equal protection” claim at play in the current case, a more reasonably remedy would not be to halt the election, but to allow it to proceed and to let its results stand unless there is any real evidence that the alleged discrimination altered the outcome.
September 15th, 2003 at 3:04 pm
XRLQ – that’s a good point, although it’s an awfully thin hair to split. That said … isn’t it better to postpone the election and make sure that all possible legal problems are dealt with in advance than it is to deal with them after the fact?
September 15th, 2003 at 3:46 pm
My prediction (detailed on my blog) is that the U.S. Supreme Court will overturn this decision as far as the recall election itself is concerned, but will uphold the postponement of Propositions 53 and 54 until the March, 2004 primary. Politically that would be a HUGE loss for the Democrats, since Prop 54 was a main motivational factor to turn out their base voters. Besides, what would Bustamante do then with the $3.8 million that he’s supposedly transferring to the anti-Prop 54 campaign?
September 15th, 2003 at 4:03 pm
Did anyone else like the part where delaying the recall was vital to the War on Terror?
I’m not kidding. I’ve got the section quoted on my blog.
September 15th, 2003 at 5:05 pm
Aphrael: I disagree that it is a “thin” hair at all. Ordering Group A to do X and telling Group B to do Y is discrimination. Ordering Groups A and B to make up their own minds is not. If Bush v. Gore compelled today’s result, as you seem to be arguing, the Court would not have merely halted the endless recounts; it would have had to cancel Florida’s existing election results as well.
As to the remedy, I agree that it’s best to try to fix as many potential problems as possible in advance, but the “nuclear bomb” the 9th Circuit just dropped is a cure much worse than the disease. Even if I were to accept the ACLU’s claim at face value, the difference between a punch card error rate and that of its alternatives is all of 1.34 percent, assuming no compensatory voter education campaigns. Most of that 1.34% will cancel itself out, as the increased error rate does not systematically favor one side over the other. Even if that 1.34% were to magically gang up on one side or the other, the likelihood that the outcome of the election will turn on this is next to nil. We don’t allow victims of real discrimination to sue if they can’t show they were harmed by the discrimination or are very likely to be. Why on earth should we allow partisans who did not challenge last year’s election to challenge this one under false pretenses?
If this ruling stands, all future elections will be subject to a preemptive judicial nullification. This time, it’s punch cards. Next time, it will be some other technology that has an error rate greater than 0%. The anti-recall zealots have already admitting as much.
September 15th, 2003 at 9:04 pm
Aphrael:
You have to admit, cancelling an election is an extremely drastic remedy. Given that there were less severe remedies available (like mandating a uniform system of casting votes statewide and cancelling the election if, AND ONLY IF, no uniform system was feasible) I don’t see how this argument can possibly stand up.
Incidentially, heavily Republican Orange County has transferred to a modified punch card system for this election & this election only (its prior system, which was far more accurate, was scrapped in anticipation of computer voting). Therefore, if anything, the Equal Protection violation claim was STRONGER in 2002, since OC voters are now likely to be equally “disenfranchised” as Democratic LA county in this election, whereas they were “hyperfranchised” in 2002.
September 16th, 2003 at 9:37 am
If they think punchcard ballots are too complicated for us poor dumb voters, wait till they see how we deal with computer ballots.
September 16th, 2003 at 9:52 am
What was that Pat Robertson said about the ACLU being a terrorist organization?
September 16th, 2003 at 10:04 am
That’s a terribly unfair comparison. When was the last time terrorists halted a democratic election in this country?