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:
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 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.
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:
consideration is limited to the present circumstances, for the problem
of equal protection in election processes generally presents many
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,
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
Oh I'm sure Eugene is as tired of all this as the rest of us.
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.
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?
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
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).
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.
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
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?
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.
"Our consideration is limited to the present circumstances, for the
problem of equal protection in election processes generally presents
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.
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.
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
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?
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?
"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.
"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.
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.