Tuesday, September 16, 2003
Ninth Circuit Panel Orders Recall Vote Postponed Until March
Court Says Use of ‘Obsolete’ Punch-Card Voting Violates Equal Protection
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals yesterday ordered the California gubernatorial recall election postponed to March 2, saying the use of VotoMatic punch-card voting in six counties would deprive the voters there of the equal protection of the laws.
“Plaintiffs allege that the use of the obsolete voting systems in some counties rather than others will deny voters equal protection of the laws in violation of the United States Constitution,” the panel—Judges Harry Pregerson, Sidney Thomas, and Richard A. Paez—said in a per curiam opinion.
“They seek to postpone the vote until the next regularly scheduled statewide election six months from now, when the Secretary of State has assured that all counties will be using acceptable voting equipment, and all the polls will be open,” rather than using a limited number of polls as planned, the judges explained. “We agree that the issuance of a preliminary injunction is warranted and reverse the order of the district court.”
U.S. District Judge Stephen V. Wilson of the Central District of California, who had previously ordered the six counties to replace their punch-card systems—which the secretary of state had already declared obsolete—in time for next year’s elections, declined earlier this month to block the recall, which had been set for Oct. 7.
But the appellate judges cited testimony estimating that 40,000 voters in the six counties—Los Angeles, Santa Clara, San Diego, Sacramento, Mendocino, and Solano, containing 44 percent of the state’s electorate—could be disenfranchised by the same types of problems that affected the 2000 presidential voting in Florida.
The ruling is final in seven days, giving Secretary of State Kevin Shelley and recall advocate Ted Costa, who intervened, the opportunity to seek emergency relief from the full Ninth Circuit or from the U.S. Supreme Court. If the decision stands, it will not only affect the recall, but also the vote on Proposition 53, a proposed constitutional amendment dealing with public finance, and Proposition 54, an initiative that would generally bar the state from collecting data on race.
The judges noted that under the Elections Code, a California county may choose among election systems certified by the secretary of state. A “defective, obsolete or otherwise unacceptable” system may be decertified.
In concluding the punch-card system, first used in California and elsewhere in 1964, is too defective to permit its use in the recall election, the panel cited studies by Ray G. Saltman for what is now the National Institute of Standards and Technology. Saltman, a plaintiffs’ expert in the case ruled on yesterday, concluded in 1975 and again in 1988 that pre-scored punch-card voting devices are subject to significant possibilities of error.
Those conclusions were borne out by the Florida experience, the judges said. They recalled how vote counters were confronted with “hanging chads”—where one corner of the chad, a square that the voter punches out with a stylus in order to cast his or her vote, remained attached to the card—as well as “tri chads,” where a hole was punched through but the chad hung from four sides, and “dimpled chads” where an indentation appeared but the hole had not been punched through.
Two years ago, then-Secretary of State Bill Jones ordered the two punch-card systems used in California decertified. But he postponed the effective date of his decision to Jan. 1, 2006 in order to permit an “orderly and well thought out” transition to newer systems.
“We cannot wait for a Florida-style election debacle to occur in California before we replace archaic voting systems,” Jones noted in a press release cited yesterday by the appellate panel. Jones noted in that release that the state had never previously decertified a system that was still in actual use.
The appellate panel cited Jones’ warning, and concluded, contrary to the district judge, that the fear of such a debacle outweighs the harm that recall proponents would suffer in the event of a postponement.
The court cited Bush v. Gore, 531 U.S. 98 (2000). Allowing counties to use voting systems with vastly different error rates, the Ninth Circuit judges said, is akin to allowing different localities to use different standards for counting ballots, which the Bush court said violated the Fourteenth Amendment.
The judges went on to say that going ahead with the vote would disenfranchise a disproportionate number of minority voters. They cited the fact that the six counties have a total minority population of 46 percent, compared to 32 percent in the other 52 counties, along with studies showing that minorities are more likely to have their ballots invalidated when punch-card systems are used.
The plaintiffs were represented on appeal by Mark D. Rosenbaum, Peter J. Eliasberg, Ben Wizner, Catherine Lahmon, and Danile P. Tokaji of the ACLU Foundation of Southern California and by law professors Erwin Chemerinsky of USC and Laurence Tribe of Harvard.
Deputy Attorneys General Andrea L. Hoch, Louise R. Mauro, Kenneth R. Williams, Douglas J. Woods, and Susan R. Oie represented Shelley, while Costa’s attorneys were Charles P. Diamond, Robert M. Schwartz, Robert C. Welsh, and Victor H. Jih of Los Angeles, and Charles H. Bell and Thomas W. Hiltachk of Sacramento.
The case is Southwest Voter Registration Project v. Shelley, 03-56598.
Copyright 2003, Metropolitan News Company