One More Round For Bush v. Gore
By Charles Lane
Washington Post
Tuesday 16 September 2003
Just last February, Supreme Court Justice Ruth Bader Ginsburg, a
dissenter in the historic 2000 election case that handed victory to President
Bush, told a law school audience in San Diego that Bush v. Gore was a
"one of a kind case," adding: "I doubt it will ever be cited as precedent by
the court on anything."
But yesterday, a three-judge panel of the San Francisco-based U.S.
Court of Appeals for the 9th Circuit essentially declared that the legal fallout
of the 2000 case is not so easily contained.
In a 66-page unsigned opinion, the panel, made up of Judges Harry
Pregerson, Sidney Thomas and Richard Paez, cited Bush v. Gore
repeatedly to support the view that California's Oct. 7 gubernatorial recall
election would be unconstitutional if the state, as planned, used outmoded
punch-card ballot machines like those that contributed to the deadlock in
Florida in 2000. The punch-card technology would deny millions of
Californians their constitutional right to have their ballots counted fairly, the
court ruled.
"In this case, Plaintiffs' Equal Protection Clause claim mirrors the one
recently analyzed by the Supreme Court in Bush v. Gore," the 9th Circuit
observed.
If the panel ruling is not reversed by a larger 9th Circuit body, the
Supreme Court justices, for whom the stress and strain -- both personal
and institutional -- of 2000 are still a fresh memory, will face a choice. They
can stay out of the California case and risk permitting what they may view
as a debatable interpretation of Bush v. Gore to stand, or they can plunge
in and assume the risk that they will once again be criticized for
partisanship no matter what they decide.
Bush v. Gore held for the first time that the Constitution's equal
protection clause, which protects citizens from arbitrarily disparate
treatment at the hands of state authorities, can be applied to the methods
states use to tally votes. Previously, election methods had been thought to
be mostly the province of state officials.
The court ruled that a statewide manual recount ordered by the Florida
Supreme Court to account for uncounted punch-card ballots, many of which
were marred by "hanging chads" and the like, would be conducted
according to wildly varying rules, making it impossible for the state to treat
everyone equally within the short time available.
For the liberal interest groups and lawyers who have been fighting
California's recall, Bush v. Gore has mutated from reviled electoral coup to
legitimate legal weapon.
If the case means anything, they argue, it means that the Constitution
forbids states from arbitrarily counting different voters' ballots differently.
That includes setting up an election in which one technology, the
punch-card machines, would subject a sizeable percentage of voters --
among whom are a disproportionate number of minorities -- to a greater risk
of having their ballots discounted than other voters.
Indeed, yesterday's ruling flowed from earlier litigation, since settled, in
which groups used Bush v. Gore to win a promise from the state that all its
punch-card machines would be replaced by March 2004, when the state
will hold Republican and Democratic primaries.
The 9th Circuit noted that, according to experts, about 40,000 out of the
several million expected to vote in the recall election would lose out
because of the normal 2.23 percent error rate in the punch-card technology.
Those voters would tend to come from six heavily minority counties
containing 44 percent of the state's voters, whereas 56 percent of the
state's voting population would get the benefit of machines with an error rate
of no more than 0.89 percent.
Such discrepancies would probably not have risen to the level of a
federal issue in the past, but 2000 changed all that, the 9th Circuit ruled.
"If we had brought the punch-card case to court before Bush v. Gore,
you'd likely see the courts say, 'No, states have to have some leeway,' "
said Rick Hasen, a professor at Loyola Law School in Los Angeles who
aided the American Civil Liberties Union in the case. "But if it doesn't apply
here, it doesn't apply anywhere."
But others say both the recall's opponents and the 9th Circuit panel --
made up of three of that left-leaning court's most liberal members -- have
misinterpreted Bush v. Gore.
For all its conclusive impact on the Florida recount, the Supreme Court's
majority opinion ended on a note of ambivalence.
Protesting that their involvement was an "unsought responsibility," the
majority -- made up of Chief Justice William H. Rehnquist and Justices
Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence
Thomas -- said the decision was "limited to the present circumstances."
The 9th Circuit panel just blew by that admonition, some legal analysts
say.
"It over-read Bush v. Gore a little bit," said Vikram Amar, a professor of
law at the University of California Hastings College of Law in San Francisco.
"You can't say it's quite identical, because Bush v. Gore involved manual
recounts, not machine mistakes. In 2000, the Supreme Court was worried
that standardless criteria allowed individuals to manipulate results, and that
may be worse constitutionally than machine errors skewing the result."
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