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October 01, 2003
LOST VOTES
'Shelley' Holding Will Mean Ballot-Counting Disparity, But Could Have Been Worse
Forum Column
On Sept. 23, the 9th U.S. Circuit Court of Appeals, sitting en banc, unanimously reversed an earlier unanimous three-judge panel decision that delayed the Tuesday gubernatorial recall election until six California counties using punch-card machines could replace those machines with better voting technology. Southwest Voter Registration Education Project v. Shelley, 2003 DJDAR 10832 (9th Cir. Sept. 23, 2003). The latest that replacement would have come is March, when the state, under an earlier consent decree in Common Cause v. Jones, 213 F.Supp.2d 1110 (C.D. Cal. 2002), had agreed that the decertified punch-card machines would be taken out of service.
Presumably, the state could have mandated that those six counties use an alternative system, such as technologically simple and very reliable paper ballots, in an election held well before March.
The en banc decision reinstating Tuesday's election is unfortunate because it means that we will be going into the election knowing that systematic geographical disparities in the ways that votes are counted could affect the outcome of the election with no effective post-election remedy, despite the court's suggestions to the contrary.
Although the en banc court erred, the outcome was understandable given the reliance of candidates, election officials and others on the Tuesday date by the time the en banc court decided the case.
On the bright side, the opinion
could have been much worse. At least the court left open the possibility
of future challenges based on gross disparities
in
vote counting technology.
The following hypothetical illustrates this point: Imagine that California
had perfect technology to cast and count votes but that the Legislature
had passed a law requiring that 1.5 percent of the votes in six counties
comprising
44 percent of the state's population, including many minorities, will be
destroyed rather than counted in order to save money in vote counting.
Such a law undoubtedly would be declared unconstitutional. The case would
be even stronger after the Supreme Court decided Bush v. Gore, 531 U.S.
98 (2000),
holding that it violates the Equal Protection Clause to, by "arbitrary
and disparate treatment, value one person's vote over that of another" through
the use of nonuniform recount standards.
The punch-card situation in California is similar to this hypothetical because the evidence shows that the punch-card rate of error greatly exceeds the rate of most other available technologies. Simply put, voters in those six counties have a lower chance of casting a vote that will count than voters in other counties.
Before Bush, someone might have defended successfully the selective use of punch cards as a resource allocation decision: It is too expensive to replace the machines, typically used in big cities with budget problems. But if Bush has any precedential value, it should apply to the selective use of punch cards. Democracy is not always cheap. That Bush should apply to punch-card disparities seemed fairly uncontroversial when California agreed to settle the Common Cause v. Jones suit on this basis and when an Illinois judge accepted the Bush argument in Black v. McGuffage, 209 F.Supp.2d 889 (N.D. Ill. 2002).
The issue became controversial only when it re-emerged in the context of the recall litigation, where a decision on the merits had immediate political implications.
Opponents of a delay in the recall now point out that the Bush decision contains limiting language, or they argue, contrary to the position some of them took when Bush was decided, that it was a one-day-only ticket for George W. Bush.
No doubt, Bush was a murky decision, and it is subject to various interpretations. But if it is to mean anything, it should mean that systematic geographical disparities in the way votes are counted in a state are an equal-protection violation.
The initial three-judge 9th Circuit panel accepted this interpretation of the Equal Protection Clause. The en banc court did not really reach the issue. Despite the fact that Bush was briefed thoroughly by the parties and was the basis for the three-judge panel's decision, the en banc court, probably to preserve the ability to issue a single, unanimous opinion, addressed the issue in a single paragraph: "We have not previously had occasion to consider the precise equal protection claim raised here. That a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ. In Bush v. Gore, the leading case on disputed elections, the court specifically noted: 'The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.' 531 U.S. at 109. We conclude the district did not abuse its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim."
Thus, the en banc court did not reject the three-judge panel's holding on Bush, nor did it endorse the alternative view that selective punch-card use is constitutionally acceptable. Indeed, elsewhere in the opinion the court specifically left open the possibility of such a claim after the election under both the Constitution and Voting Rights Act.
The plaintiffs' argument was that 40,000 votes may be lost because of the punch-card machines. If the margin of victory on either Part 1 or Part 2 of the recall is less than 40,000 votes, the claims may, indeed, re-emerge in a post-election challenge.
Unfortunately, by then it probably will be too late. It is always better to remedy an election problem before an election whenever possible. Think of the butterfly ballot. Imagine if someone went into a court in Palm Beach County before the 2000 election, claiming voters would be confused by the format. It surely would have been better for a judge to scrap the format then and order a new one produced. After the election, there was no way to know that all of those votes for Pat Buchanan were really for Al Gore.
It is the same problem in the recall election. One of the problems is that punch cards record a large number of "overvotes," in which the machine records more than one vote for a candidate. Those cannot be recounted.
Nor can voters who have been deterred by the punch-card technology (and the long lines undoubtedly caused by the consolidation of precincts and the lengthy, randomized list of 135 candidates) be asked to come in and vote. If there was to have been an effective remedy, it should have come before the election.
The en banc court refused to enjoin the election not because it rejected the legal theory of the plaintiffs but because it placed discretion on both the contested facts and the law in the hands of the trial judge. That might be appropriate for most preliminary injunction cases, but it seems inappropriate where, as here, the preliminary injunction stage likely is the only phase of the case that can provide meaningful relief to the plaintiffs.
The en banc court correctly also was concerned over hardships at this stage to candidates, election officials and the many voters who had cast absentee ballots. This was a difficult question by the third week of September, when the en banc court heard the case, but it was not on Aug. 7, when the lawsuit was first filed. Back then, the reliance interests of going forward were clearly outweighed by the equal-protection and Voting Rights Act problems.
In the end, the en banc court faced a profoundly different balancing question from that faced by the District Court or even by the three-judge panel. Still, it is troubling that the en banc court was willing to take the risk of providing no remedy for the disenfranchisement of voters, many of whom are minorities protected under the voting act.
If there is a silver lining, it is that the en banc court did not close the window on future equal-protection and Voting Rights Act challenges to the selective use (often in big cities with large minority populations) of inferior voting technology. California never would have phased out the punch-card systems and Congress would not have passed legislation for funding the upgrading of voting technology but for Florida 2000.
Through its murky Bush opinion, the Supreme Court has provided a window of opportunity for voting rights advocates pushing voting reform in the courts. Advocates should act before the window closes.
Richard L. Hasen, a professor of law at Loyola Law School and author of "The Supreme Court and Election Law, Judging Equality from Baker v. Carr to Bush v. Gore," filed an amicus brief supporting the plaintiffs in the Shelley appeal.