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9th Circuit enters California's recall circus
On Monday, three judges on the 9th U.S. Circuit Court of Appeals decided that the same technology which twice elected Gray Davis governor of California was somehow not reliable enough to decide whether Gov. Davis should be recalled ... and that the terms of a "consent decree" in a single civil lawsuit trump the clear language of the state's constitution.
The judges ruled that the recall election must be delayed because six California counties comprising 44 percent of the Golden State's population planned to use punchcard voting, which has a higher likelihood of error.
While the dispute appears to revolve around the reliability of voting technology, in fact the ruling threatens the integrity of elections everywhere. In Nevada, a handful of counties continue to use punchcard ballots, and Clark County absentee votes are registered by the punchcard method. Three black-robed lawmakers determined that unless every American is allowed to use the spiffiest, most expensive, state-of-the-art technology available to cast a ballot, any election can be hijacked by litigious activists.
In the aftermath of the 2000 presidential election, the Golden State decided to replace its punchcard voting machines with touch-screen devices. Former Secretary of State Bill Jones decided that the new machines had to be in place by Jan. 1, 2006.
But a group of activists led by Common Cause sued the state, noting that the 2002 and 2004 elections would take place before the new technology was universally available. The parties then agreed upon a "consent decree" which stated that the touch-screen devices would be in use before the March 2004 primary election.
This consent decree became the basis of the recall challenge. Activists -- led this time by the ACLU -- argued that a disproportionate number of votes would be miscounted in the six counties that had failed to install touch-screen devices. Delaying the election until March would guarantee "equal protection" of all California voters.
Two problems: First, there's no guarantee touch-screen voting machines will be any more accurate than those of the punchcard variety. A July analysis by researchers from Johns Hopkins University and Rice University of the touch-screen machines that will be employed by as many as 10 California counties concluded that it's possible for programmers or polling-place observers to tamper with the computers. Since these machines offer voters no paper record of their ballots, such fraud could go undetected.
Next, the California Constitution states that any recall election of a public official must be held between 60 and 80 days of the date ballot signatures are verified by the secretary of state. Delaying the recall until March would push the election outside that clearly established time frame.
To which the 9th Circuit said: Never mind.
If the decision stands on appeal, any election in which more than one method of casting a ballot is used could be overturned based on the notion that one was potentially more accurate than the other, leaving some voters with a greater chance of being disenfranchised. The U.S. Supreme Court should take the case -- and soon.
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