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August 08, 2003

PRECEDENT?....I'm confused. The California Supreme Court has tossed out Gray Davis' pathetic attempts to prevent the recall from going forward, but in the LA Times today Richard Hasen suggests that Davis might yet prevail in federal court because California still uses punchcard voting machines in some precincts but not in others:

During the 2000 election controversy, the U.S. Supreme Court held in Bush vs. Gore that it is a violation of the equal-protection law to value one person's vote over that of another. After that case, voting rights organizations challenged punch-card voting in four states, including California.

California settled its suit and agreed to phase out punch-card voting by March 2004. Illinois did not settle, and a federal district judge held that the use of punch-card voting indeed constitutes an equal-protection violation under Bush vs. Gore.

Now it's true that Bush v. Gore was partly decided on equal protection grounds, but even the Supreme Court itself realized how risible those grounds really were. So risible that they specifically excluded the possibility of using their decision as a precedent in other election cases:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

So while it's possible that a federal judge could rule that the selective use of punchcard ballots violates equal protection, they couldn't base that decision on Bush v. Gore, could they?

But even more to the point, where's the Volokh Conspiracy in all this? Shouldn't they be analyzing the law for the rest of us?

Posted by Kevin Drum at August 8, 2003 04:22 PM | TrackBack


Comments

Oh I'm sure Eugene is as tired of all this as the rest of us.

Posted by: David Ehrenstein at August 8, 2003 04:38 PM | PERMALINK

So while it's possible that a federal judge could rule that the selective use of punchcard ballots violates equal protection, they couldn't base that decision on Bush v. Gore, could they?

Bush v. Gore cannot simultaneously be good law and not usable as precedent to the extent that the circumstances are comparable. At most, that caveat serves as a notice to other jurists to be very careful in analyzing the particular circumstances of the cases before them.

Or as a notice that Bush v. Gore was a nakedly partisan decision, and if the political parties of the parties to the case were reversed, the Court would rule otherwise.

Depends how cynical you are, I guess.

Posted by: cmdicely at August 8, 2003 04:44 PM | PERMALINK

Wasn't one of Davis' points that he could be recalled by 51%, meaning he had 49% support, but because he is excluded from being on the second part of ballot, someone could become Governor with 21% if that is the highest number of votes received on the second ballot? How is that fair? And how does that reflect the will of the voters?

Posted by: Dave Johnson at August 8, 2003 04:44 PM | PERMALINK

The California Supreme Court has tossed out Gray Davis' pathetic attempts to prevent the recall from going forward

I think there was something extremely fishy about the court throwing out five cases at once. Is that normal? It feels like the decisions were made in the name of political expediency rather than seperately analyzing each case's legal validity. As Kos pointed out in a post yesterday, there's a very compelling argument to be made that the part of the recall law that deals with the election of a successor only applies in cases where succession isn't clearly stated by state law.

Posted by: greg (the "talent show" one) at August 8, 2003 05:18 PM | PERMALINK

someone could become Governor with 21% if that is the highest number of votes received on the second ballot? How is that fair?

One thing to keep in mind is that even though a voting system may be stupid and not "fair" in the way we normally accept such things, it may still be constitutionally viable. The courts may intervene in the event of constitutional violation, but not merely because of legislative stupidity (granted, the two circumstances frequently overlap).

Posted by: DeanC at August 8, 2003 05:21 PM | PERMALINK

With Schwarzenegger in the recall race, Davis is going to get a lot of pressure from the Dems to resign before recall election day, thereby canceling the election. I'll wager that even as I write, the Democratic leadership (an oxymoron if I ever heard one) is pleading with Davis to step down. They're probably offering him some future governmental post at the federal level to get him to agree. My bet is that he'll resign and probably at a point when Schwarzenegger is getting bad press. This might terminate the Terminator as a threat in a future elections.

Posted by: Jeff Paris at August 8, 2003 05:45 PM | PERMALINK

Mr. Paris, I think the recall election is a done deal and has been since the SecState certified that enough valid signatures had been collected. Thus Davis' resignation would make no difference.

I'm pretty sure I'm right, since the subject was discussed up one side and down the other in this very space over the past week or ten days.

Posted by: Linkmeister at August 8, 2003 06:13 PM | PERMALINK

The court *must* have said (I didn't read the decision) that this is an issue for the political branches, which isn't such a dumb position. What I really don't understand is why the Lt. Gov. wouldn't be the successor, especially since it really doesn't seem that they ran as a ticket. But the Sec. of State has apparently decided that one too.

Could this have happened at any other time of year?

Posted by: Altoid at August 8, 2003 06:26 PM | PERMALINK

Punchcards are unwieldy with only a dozen or so choices. Won't the potential for spoiled ballots go through the roof if there are many times that number of choices possibly in the hundreds? Is everyone going to be handed a stack of cards? Won't this just multiply the already inherently higher spoiled ballot rate? It seems voters using punch cards will be even more disadvantaged than usual.

Posted by: fastback at August 8, 2003 07:27 PM | PERMALINK

"Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Gahhhhhhhh! That drove me crazy, because it was basically code for "if we held this standard in general, it would invalidate every national election ever held."

It pisses me off every time I read it.

Posted by: Magenta at August 8, 2003 08:24 PM | PERMALINK

I'm one of those people who get absentee ballots. When will this come in the mail? And, how will the process deal with a telephone book full of names running in competition to Davis, should Davis fail?

Besides, just because the State Surpreme's didn't bite the apple this time; whose to say 2nd and 3rd chances don't show up?

All they decided on was Davis' suit.

What's ahead?

If you paid your money to be on the ballot to run, and there's not enough room for all the names, then can't the Supreme's be approached again?

Can't Federal Court says 'no,' but also say that State Law would be applicable? Can the State Legislature weigh in?

Wouldn't there be a legitimate solution to saying if Davis is bounced, it should be like he died in office, so that Bustamante gets the nod? That would make Hispanics happy. Why does the rules change, here? If Davis is bounced, is he immediately out of office? He's not dead. And, he took an oath to serve. Was his oath considered good only on a day-by-day basis?

IF diplomats could argue the shape of the table, way back in the 1950's, when we were trying to pull out of Korea ... And, it took 2 years to come to a pull out without a peace treaty ... why not think this thing could be milked?

Heck, lawyers are involved. Milking this stuff comes naturally. It's only the public who thought there would be some kind of quick decision from the courts. This is how things have worked in all your lifetimes, out there? Really?

My money's on confusion ahead. My money's on Bush coming out (where he's never had success in California). Aaaaronold milking this publicity machine for all it is worth. And, the circus coming to town will be bigger than the 1984 Olympics.

You got better ideas?

Posted by: Carol Herman at August 8, 2003 11:41 PM | PERMALINK

Also, weren't punch cards vs. optical readers an issue in the 2000 Florida election? Didn't the Supremes decide that the different rates of spoilage was not an issue worth worrying about then?

Wouldn't that suggest that, of any precedent that might sneak out around there "Don't use this BS decision as precedent" show that the Court doesn't care whether your ballot is more likely to be spoiled?

Posted by: Adam at August 9, 2003 12:12 AM | PERMALINK

fastback:
"Punchcards are unwieldy with only a dozen or so choices. Won't the potential for spoiled ballots go through the roof if there are many times that number of choices possibly in the hundreds?"

I don't see why there should be any significant risk of spoiled punch cards. The list of candidates is long but you only choose one. When you're done voting, check that you have four(4) clean punchs at the right numbers on your card before returning it. (For yes/no on the recall, your replacement candidate, and yes/no on a couple of initiatives.) If poll workers put up a sign to that effect there shouldn't be any Florida-chad problems.

Posted by: Bill Woods at August 9, 2003 12:38 AM | PERMALINK

"If poll workers put up a sign to that effect there shouldn't be any Florida-chad problems."

As I write this, all around the country, people are running stop signs, walking on the grass despite "Keep off the Grass" signs, feeding bears in front of "Don't feed the Bears" signs, and failing to rewind rented videotapes. I submit you are unreasonably optimistic about the efficacy of signs.

Posted by: rea at August 9, 2003 07:51 AM | PERMALINK

Altoid - the court didn't say that in so many words. It's basic attitude was more along the lines of "the power of direct democracy is inherently sacred and this court declines to stand in the way". The only issue there was any real debate about was the signature requirement (for getting on the contingent ballot).

Many of the suits did not present a federal issue and so are more-or-less unappealable. The exception is the equal protection claim.

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