Let’s start again from the top.
California’s Secretary of State is required by law (Elections Code §§19100, et seq.) to provide “regulations governing the use of voting machines, voting devices and vote tabulating devices.” No such device may be used in California without prior certification by the Secretary of State (hereafter CSoS). The CSoS is required to periodically review the acceptability of such devices, and remove certification if it stops being acceptable. In such case, any election within 6 months of decertification may procede using the decertified machines. In 2000, California had certified use of VotoMatic (pre-scored chad cards), Datavote (cards punched by stylus but without pre-scored chads, various optical scanning systems, and certain “direct recording electric devices” (touch screen vote machines). This history is easily reviewed in the factual summary of the Opinion filed by the panel of the 9th Circuit in the case of Southwest Voter Registration Education Project, et al. v. Shelley.
(This factual background shows The Ryan (one hopes) that individual counties don’t get to decide what type of voting system will be used, except to the extent of choosing among approved systems. If the CSoS were to determine that only “direct recording electric devices” were acceptable, the counties would not be able to use any other type of device. Of course, maybe this is a “subversion of democracy”, but I hardly think so :rolleyes: )
In 2000, the Supreme Court of the United States held that the statewide recount of ballots cast in the selection of presidential electors was violating the equal protection clause of the 14th Amendment. Specifically, the fundamental right to vote required the state to conduct the recount in such a way that no dilution of the value of the individual votes occurred. The statewide recount was proceding with individual counties approaching the difficulties presented by certain types of vote-tabulating methods differently, without recourse to any statewide mandated standard for determining the result of any specific disputed ballot. In the opinion of the Court, as stated in the per curiam opinion, to procede constitutionally, the state would have to adopt uniform standards for vote tabulation, and apply them to the “votes” recorded in the election. The Court’s opinion did indicate that the Court was not considering the constitutionality of using “different systems for implementing election.”
(Here we get to the much disputed language from Bush v. Gore about limited extent of holding. The Court’s language that, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” is “throwaway” language, because all cases are “limited to the present circumstances.” This doesn’t mean that stare decisis limits application of the rule of law announced in the case to the “present circumstances;” lower courts applying the decision will parse from the case the actual principle the court is announcing and applying, and use it to determine the constitutionality of similar situations. When the Court then says, “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections,” the Court is, as I mentioned previously, attempting to forclose certain attempts to extend the principle of the case. Specifically, in my opinion, they are attempting to foreclose suits attempting to force states to utilize one type of vote tabulating device statewide, or suits trying to force a federal voting machine. This is not what the case at hand is about; hopefully IzzyR and The Ryan understand this difference.)
In 2001, several organizations sued the CSoS, requesting that an injunction issue prohibiting continued certification by the CSoS of pre-scored punch card voting machines. The plaintiff’s alleged that continued certification of such systems resulted in vote dilution violating the U. S. Constitution, because such systems had significantly higher numbers of “votes” that went unrecorded, or improperly recorded, than other systems in use in the state. The CSoS attempted to have the case dismissed upon (I presume) summary judgment, asserting apparently that the plaintiffs assertions, even if true, did not result in a violation of the Constitution. That attempt was denied (the court determined that the plaintiff’s allegations, if proven, would result in a constitutional violation which could neccessitate the injunction requested). In short (though we don’t have the pleadings to look at, nor am I going to bother looking them up because it really isn’t relevant to the current case exactly how the parties got to their consent decree), the court accepted the application of the principles of Bush v. Gore and other prior cases to the California situation.
The CSoS did not appeal this ruling. Instead, the CSoS promptly decertified the pre-scored punch card machines, effective January, 2006. This decision was made and issued 9/18/01. Subsequently, the parties to the case entered into a settlement moving the date of decertification up to 3/1/04, mandating that the primary election of March, 2004 would occur without the use of pre-scored punch card machines. The court issued a consent decree, upon which judgment was entered. Anyone wishing to review the case further can reference Common Cause, et al. v. Jones, C. D. Cal. 2002, No. 01-03470 (Common Cause I).
To summarize: had no recall petition been filed, the next statewide election in California would not have used pre-scored punch cards. Propositions 53 and 54 would have appeared on the March, 2004 ballots. The use of such cards up to that point in the 2002 statewide elections and the 2003 local elections was allowed solely because, a) the requirements of the Election Code required that at least the 2002 primaries be held using the systems being decertified, and b) it takes a certain amount of time to replace the machines and train the personnel to use them properly, a fact the plaintiffs in Common Cause I understood because their prayer for relief initially requested replacement by March, 2004, not some date sooner.
(Now we can dismiss the assertions that the fact the 2002 elections proceded using the systems in question has some bearing on the present case: they were used in that election because it was simply unfeasible to replace them, as well as unfeasible to refuse to hold elections until replacement in 2004. Of course, had any of the statewide races been decided by a margin small enough to implicate the unconstitutional practice of using pre-scored punch cards, we can be certain that lawsuits challenging the results would have been filed.)
On July 23, the CSoS certified that a proper petition for recall of the governor had been filed with sufficient valid signatures to mandate a recall election. The Lieutenant Governor, pursuant to the California Constitution, (Art. II, §15(a)), set the date of the recall election as October 7. The plaintiffs in Southwest Voter Registration Education Project, et al. v. Shelley filed suit, seeking an injuction prohibiting the recall and initiative elections until such time as they could be held without use of pre-scored punch cards. The District Court denied the request for a preliminary injunction, and the plaintiffs appealed to the 9th Circuit.
With this understanding in hand, we can now dismiss of the points raised recently, specifically:
1) The fact counties have different systems doesn’t mean that equal protection of the laws isn’t being provided, so the 9th’s application of Bush v. Gore is incorrect. This is an incorrect statement of the issue before the 9th Circuit, because the challenged unconstitutionality isn’t that counties use different systems, but rather that the state continues to allow (until March, 2004), use of pre-scored punch card machines in ANY county. Counties are free under the opinion of the Supreme Court and the opinion of the 9th Circuit to use differing approved voting systems. But the STATE isn’t free to continue to allow use of a system that produces significantly disparate results diluting the value of the votes cast in counties still using the system. Remember that the apparently uncontroverted (to this point) evidence is that some 40,000 votes can be expected to be improperly tabulated (either incorrectly determined to be a vote for no one, or for some person or result other than the intended result). The error rate is at least 2.5 times that of other equipment certified for use in the election. Thus, the result of the suit would not be to force a common election machine on all counties; the CSoS would be forced to make certain that all systems in use have roughly equal propensities for error. This answers, I hope, whether they choose to admit it or not, the assertions of IzzyR and The Ryan about the impact upon the freedom of counties to pick and choose how to conduct elections.
2. The Common Cause I consent decree has no effect on the current case; it doesn’t establish that the system in use is unconstitutional. I haven’t said differently, nor has the 9th Circuit. But, the Common Cause I case DID get to issues of constitutionality when the court, ruling on the “motion on the pleadings” brought by the CSoS. In denying that motion, the court MUST have determined that the constitutional issue raised by plaintiffs was valid. It would have remained for plaintiffs to prove the fact of unconstitutionality, but the issue of whether it COULD be unconstitutional was already decided. It was only after this determination that the CSoS issued a decertification of the machines in question. The parties agreed to a consent decree establishing that the machines would be phased out by March, 2004, as initially prayed for in the request for injunctive relief. Game, set and match to the plaintiffs!
It isn’t relevant whether the CSoS agrees that there is an unconstitutionality to using the machines; the only reason the case is referenced is to attack the assertion by IzzyR, among others, that Bush v. Gore isn’t applicable. Clearly, the District Court in Common Cause I must have thought so, or ruled that the principles therein applied. Thus, it isn’t like the 9th Circuit is on some sort of precarious perch here in citing Bush v. Gore as persuasive authority for the proposition that the use of the machines in question is a violation of the equal protection clause of the 14th Amendment. PLEASE note that the 9th Circuit did NOT hold that the case was controlled by Bush v. Gore; several other voting rights cases were cited.
Folks, the Bush v. Gore and equal protection issues here are red herrings! This case turns not on the issue of unconstitutionality of using such systems, but on the need for injunctive relief!. The 9th Circuit en banc, or the Supreme Court, if they overturn the decision of the panel, will most likely do so on the basis that an injunction shouldn’t issue despite the almost acknowledged equal protection violations involved. They will get into arcane discussions about the relative injuries to the parties. The cost of delay will be a factor, as will the uncertainty created by preventing resolution of the issue for 5 months longer than the constitutional scheme intended. And the standard ennunciated by the panel for injunctive relief may be reviewed, especially if the Supreme Court ever has to rule on the issue (see my previous post on this possibility).
One final word on this case. One of the predictions I and others made in 2000 following issuance of the decisions in the Florida recount by the Supreme Court was that the results of federal court cases would be more likely viewed as politically motivated. Mind you, there is always a tendency to view decisions as the result of liberal or conservative leanings; that is inherent in the fact that different viewpoints about the law based on such leanings exist. But in general, we haven’t seen court decisions on the federal level consistently questioned on the basis that they are motivated by an attempt to help a particular political party. Most Democrats questioned the result in Bush v. Gore by cynically asserting it was completely predictable as an attempt to shore up the Republican Party’s apparent victory in the presidential election. Now we have the shoe on the other foot, and Republicans scream that the 9th Circuit is simply toadying to the California Democratic Party. This sort of cynical viewpoint does little to support the concept of the rule of law in our society.
) I wonder if the difference in spoiled vote percentage is enough justification to nullify the Constitionally-mandated time for election.