The U.S. Supreme Court will likely be drawn intothe fray over delaying the California recall election, but the high court would be wise to sit this one out.
Published September 17, 2003
The federal appeals court decision to delay the California recall election is more satisfying for its political theater than its constitutional precedent. After all, what could be more sardonically comical than to reprise Florida's hanging chads in the recall playbill?
The three-judge panel, all Democratic appointees, no doubt delighted in the use of Bush vs. Gore, the U.S. Supreme Court's indecorous excuse to tell Florida how to count (or not count) its own votes in the 2000 presidential election. Though the comparison is strained, the voting rights argument bears some similarity: If punch-card ballots are significantly prone to tabulation errors, then the votes of people in counties that use them are worth arguably less than those of people in counties with more modern vote-counting systems.
In the scheduled Oct. 7 recall, six of California's 58 counties would still be using the punch-card system and its error-prone chads, and those counties account for 44 percent of the voters. Given the error rate, as many as 40,000 votes in those counties could go uncounted.
In Bush, the Supreme Court found such a disparity (but in vote-counting, not vote-casting) so troubling that it sought "some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." In California, the high court would be wise to sit this one out.
To be sure, the principle established by a three-judge panel of the 9th U.S. Circuit Court of Appeals is problematic. In essence, the court is granting constitutional protection to voters based on the type of technology that is used to count their votes. Does that mean that, as various locales upgrade their vote-counting systems, voters claim disparate treatment if they are not on the leading edge of technology? With that issue at stake, the 9th Circuit most likely will opt to have an 11-judge panel review the decision first.
That said, the Supreme Court, which is all but certain to be petitioned in the end, would be invited into a fool's errand. It would be asked to establish another nationwide precedent in a case that is primarily about temporary partisan advantage. Gov. Gray Davis, a Democrat, would no doubt be helped by a delay in the recall vote. But Republicans can't possibly think that a splintered U.S. Supreme Court decision overturning the delay would be to their own advantage. Nor could the Supreme Court itself. The Florida case not only energized the Democrats to a greater extent than losing the recount might have; it also damaged the high court's prestige. It is not apparent how the court could now overturn the California ruling without calling into question its entire majority premise in Gore vs. Bush.
Delaying the California recall vote would leave a lingering pall over state government, but most of the electoral inconvenience is to candidates and not voters. As the appeals court noted, if the petitions had been certified just six weeks later, then the state Constitution would have required that the recall be delayed and held at the next regularly scheduled election, which is the March 2 presidential primary. Given that context, the delay serves mainly to give election supervisors time to make the switch to new technology and voters more time to get information about the candidates.
Republicans may have reason to feel slighted by the court, but they should be careful not to wax too poetic about democracy. U.S. Rep. Darrell Issa, a Republican businessman from San Diego who bankrolled the recall effort, called the ruling a "judicial hijacking of the electoral process." But the hijacking actually began with the $1.7-million he poured into an attempt to overturn a gubernatorial election that was less than a year old.
Not much is appealing about the delay. Then again, not much in this nasty recall is worth celebrating.
