- The Washington Times - Monday, September 22, 2003

Yesterday, an 11-member panel of the U.S. 9th Circuit Court of Appeals heard oral argument in Southwest Voter Registration Education Project vs. Shelley on whether discrepant voting systems among California counties scheduled for use during the Oct. 7, 2003, recall election of Gov. Gray Davis would offend the equal protection clause of the 14th Amendment.

A three-judge panel ruled a week earlier that the selective use of prescored punch-card voting systems, such as VotoMatic, would violate equal protection because of their propensity for miscounting. It ordered an election postponement until March 2, 2004, when the VotoMatic machines will have been phased out by California’s secretary of state.

The rehearing ordered by the 9th Circuit erases the Sept. 15 equal protection frolic, and presages a decision by the 11-member panel sustaining California’s county variations in voting technology. But the vacated per curiam opinion fashioned by Circuit Judges Harry Pregerson, Richard A. Paez and Sidney R. Thomas corroborates the 9th Circuit’s reputation for unruliness to Supreme Court precedents. It further underscores the customary decisiveness of judicial philosophy in major constitutional cases and the high stakes for both Democrats and Republicans in the longstanding Senate confirmation wars over President George W. Bush’s circuit court nominees.

At present, California sports four major voting systems: VotoMatic, Datavote, optical scanning, and direct electronic recording device, i.e., touch screen voting. VotoMatic, featuring notorious chads punched with a metal stylus, is more error-prone than its sister systems. For that reason, California’s secretary of state has slated the system for abandonment by March 2, 2004. The extent of VotoMatic’s unreliability is hotly disputed. But regardless of the technology used, every California voter enjoys a 96 percent or greater likelihood that his vote will be correctly tabulated.

A quartet of liberal political organizations sued to enjoin the Oct. 7 recall election. They argued that the franchise is a fundamental constitutional right; that at least six California counties comprising 44 percent of the electorate planned to employ the most unreliable voting system, i.e., VotoMatic or its equivalent, that was allegedly at least 250 percent likelier to miscount than competing systems: Los Angeles, Santa Clara, San Diego, Sacramento, Mendocino and Solano; and that the projected 40,000 undercount in these counties demonstrated an equal protection violation because voters elsewhere constituting 56 percent of the electorate confronted a lesser risk of counting error.

Plaintiffs did not allege that VotoMatic was employed for the purpose of disfranchisement. Nor did they allege the devices were subterfuges to discriminate against racial, ethnic or other distinct classes of voters. Neither did they allege that the 44 percent of voters slated to use the VotoMatic system were politically helpless to insist on graduation to one of the three more reliable methods. Finally, plaintiffs did not contend that the tiny fraction of VotoMatic error would militate in favor or against the recall of Mr. Davis or otherwise skew results along political party or ideological lines.

As reported in the New York Times on Sept. 21, Mark Ridley-Thomas, a member of the California Assembly and former executive director of the Southern Christian Leadership Council of Greater Los Angeles, a party to the recall suit, and his voter registration colleagues maintain blacks and Latinos are handicapped politically not because they vote on antiquated machines but because they are disproportionately unregistered or unmotivated. Latinos, for example, represent 22 percent of eligible voters but only 16 percent of actual voters, whereas the corresponding figures for whites are 51 percent and 73 percent.

In sum, the marginally higher percentage risk that a vote would be miscounted in a VotoMatic as opposed to a non-VotoMatic county was undisturbing to the election objective of identifying majority or plurality voter sentiments.

The per curiam opinion cobbled together an equal protection violation from these unalarming and innocuous vote counting discrepancies. It errantly declared voting is a fundamental right, whereas the Constitution generally protects only against racial, gender, age or arbitrary discrimination in voting qualifications.

The opinion further stumbled in likening the use of discrepant voting systems to a violation of the Supreme Court’s decisions demanding relatively equal populations for legislative districts. The impending recall election is statewide. And the tiny differential in percentage risk of a miscounted vote between VotoMatic and non-VotoMatic counties creates no threat to distorting the percentage of California’s voters favoring or opposing Gov. Davis’ recall. In other words, VotoMatic errors are generally politically neutral.

The Bush vs. Gore (2000) precedent of the United States Supreme Court was unpersuasively summoned by the per curiam opinion to vindicate its equal protection lark. The vice found in Bush were the clashing standards for hand recounting of votes that could be easily manipulated by highly partisan recounters to favor their personal choice for president.

In Southwest Voter Registration Education Project, in contrast, the standards for vote counting and recounting are uniform throughout California. Only the incidences of mechanical errors are nonuniform. Moreover, those discrepancies are untainted by a risk of manipulation to favor or oppose any electoral result.

The per curiam opinion’s ideological bias was underscored in passages that discounted the public injury occasioned by its recall postponement: maintaining in office for an additional half-year, or one-eighth of a gubernatorial term, a governor who has forfeited public confidence and might ruin California for his successor out of spite during his sunset months; and, the enormous reliance on a recall date of Oct. 7 by the candidates in their fund-raising and campaign strategy and tactics.

Seasonable abandonments of prescored punch-card machines for more reliable and voter friendly alternatives should be encouraged by both citizens and election officials in legislative and executive fora. But the unelected judges of the 9th Circuit have no business ordaining the same to steal a march on time under the equal protection clause of the 14th Amendment. Rule by Platonic guardians is neither direct democracy nor representative government.

Bruce Fein is a founding partner of Fein & Fein.

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