- The Washington Times - Wednesday, September 17, 2003

Monday’s shameful federal appeals court decision to postpone California’s recall election — originally scheduled for Oct. 7 — was based entirely on naked judicial politics, not election law.

It was neither about protecting the rights of four out of 10 voters who use older punch-card ballot machines, nor about the U.S. Supreme Court’s ruling on the outcome of Florida’s presidential election vote in 2000.

The decision by a three-judge panel in the notoriously liberal 9th U.S. Circuit Court of Appeals is nothing more than a transparent maneuver to give Gray Davis more time to save his doomed governorship. The ruling was the judicial equivalent of, to paraphrase Winston Churchill, “a sheep in sheep’s clothing.”

The central argument in the American Civil Liberties Union case (argued on behalf of the NAACP and other minority groups) is that the punch-card machines still used in six California counties are prone to human and mechanical error, increasing the likelihood that ballots could be misread and rejected, thereby disenfranchising some voters.

The appeals court judges, all appointed by Democrats, bought into this dubious reasoning, ruling that “using error-prone voting equipment in some counties, but not in others, will result in votes being counted differently among the counties. The margin of voting machine error may well exceed the margin of victory.” The court wants to delay the election until early next year, possibly March, when new electronic touch-screen ballot machines will be installed across the state.

Fears of large voting errors are ridiculous, because no one can tell how many errors there may be in any given election, whether they are in favor of or against a candidate. If we’ve learned anything from the Florida case, it’s that voting irregularities happen in most elections across the country. Voters make errors, sometimes disqualifying their vote, and machines make errors in tabulating votes. But this is not a justification to postpone an election mandated by law and, in this case, mandated by more than a million voters who signed petitions that set the recall process in motion.

During the 2002 California elections (where voters elected statewide officers, including Mr. Davis, and members of Congress) no one demanded that they be postponed, despite continued use of the same punchcard ballots in that election.

Actually, punch-card systems are still used throughout the country (26 states use them, according to the Election Reform Information Project). Even as the nation moves toward newer systems, including touch-screen computer systems, there’s no guarantee of reliability. Election experts say the counts may be vulnerable to computer hackers.

The court applied another questionable standard to its ruling — saying the landmark Supreme Court case in Bush vs. Gore “held that using different standards for counting votes in different counties across Florida violated the Equal Protection Clause.”

Two things are wrong with this reasoning.

First, the high court’s ruling was all about Florida’s manual recount, not about machine error. The Supreme Court ruled that the proposed recount was not fair or legal because it was an attempt to recount certain groups of voters (and not others) in areas where Mr. Gore hoped to pick up the votes he needed to carry the state.

Second, the Supreme Court’s five-member majority wrote in that case that the decision was “limited to the present circumstances” and should not be applied to other cases.

Before Monday’s decision, the ACLU’s case had been turned down by the California Supreme Court and rejected by the U.S. District Court. But the liberal civil liberties group knew it was playing to an inside hand with the like-minded judges on the 9th Circuit.

This is a court that “is widely viewed as … [the] most liberal and activist of the appellate courts,” The Washington Post observed this week.

It has ruled, for example, that the Pledge of Allegiance’s reference to “one nation under God” is unconstitutional; that a prison inmate has the right to mail sperm out of prison to procreate; and that public housing officials cannot evict residents engaged in drug use.

Now it is ruling that the courts can decide when an election mandated by the state constitution (60 to 80 days after official certification of the valid number of signatures supporting a recall) will be held.

This, of course, plays into Mr. Davis’ need for more time to mount a comeback drive, which, I suspect, is what these three judges had in mind in the first place. It would also substantially raise the costs his challengers must shell out to campaign against him.

The full 9th Circuit Court can take up the case on appeal, though it is doubtful they would reverse the three-judge ruling. That would leave the U.S. Supreme Court to decide once again whether it will enter the thorny thicket of election law in yet another state caught up in a crisis of its own making.

Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.

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