Bottom of the Ninth

Robert Alt

September 1, 2003

In the pantheon of liberal jurisprudence, there are few courts that can hold a candle to the Florida supreme court, which, during the fateful 2000 election, acted as if it was uniquely empowered to rewrite Florida election law from the bench. There is one court, however, that will not give up its title as the most-liberal and most-reversed court in the country so easily. Such titles must be earned over time, and this court, which has worked long and hard to truly deserve this title, will not be supplanted by such a relative newcomer. I am speaking, of course, of the Ninth Circuit Court of Appeals—a court which Monday issued a temporary injunction postponing California’s recall election based on a clear misapplication of the U.S. Supreme Court’s Bush v. Gore decision.

Court watchers were not surprised by this outcome. The day that the panel of judges selected to hear this case was announced, many on both the left and the right believed the decision was foregone. After all, the panel includes Judge Pregerson, who, following the Supreme Court’s decision upholding California’s three-strikes law, issued a series of dissents stating that he cannot apply the three-strikes law in good conscience. Judge Pregerson makes no attempt to distinguish the cases in which he dissents from the case decided in a contrary fashion by the United States Supreme Court. He does not even attempt to apply a legal rationale for his dissent. Rather, he asserts his own will in place of the legislature which wrote the law, and the United States Supreme Court, which declared that specific law to be constitutional.

Then there is Judge Thomas, who gained notoriety recently for authoring the decision which, by applying a procedural rule retroactively, has the potential to overturn more than 100 capital cases. Judge Thomas issued this decision despite the fact that every other circuit (including, ironically, the Ninth Circuit) had previously found that the principle of law that he on relies does not apply retroactively.

Finally there is Judge Paez, who referred to California’s Proposition 209—a popularly enacted civil-rights initiative which prohibited the use of race as a factor in admissions to state universities—as an “anti-civil rights initiative.” Conveniently, the question presented to the court of the whether election may go forward in October affects not only the recall, but the Racial Privacy Initiative sponsored by Ward Connerly. As luck would have it, Mr. Connerly was also the sponsor of Paez’s favorite: Prop. 209.

Now that you know a little about the panel, on to the case itself, which was brought by a gaggle of activist groups which respectively claimed that the U.S. Constitution’s Equal Protection clause is offended by the fact that 44 percent of the counties use punchcard ballots, while the remainder of the counties use optical-scan ballots or variants of touchscreen balloting. But my description lacks a certain panache. As the Ninth Circuit put it, “Plaintiffs allege that the fundamental right to have votes counted in the special recall election is infringed because the pre-scored punchcard voting systems used in some California counties are intractably afflicted with technologic dyscalculia.” Well that clears it right up. Putting this through the gibberish translator, the plaintiffs claim that the state may not use punchcards because the punchcard system of balloting is not as accurate in conveying votes as other, newer methods.

In analyzing this claim, the Ninth Circuit conceded that no voting system is foolproof, and that the Constitution does not demand the best-available technology. So far, so good. Indeed, a brief examination (not performed by the Ninth Circuit, mind you) shows that the optical-scan method, which utilizes bubbles filled in with No. 2 pencils, is subject to miscounts from double feeds just like the punchcard system; like a feeder on a copy machine, the reader may grab more than one ballot at a time, in which case it will only count the top ballot. The optical-scan system also will not count bubbles that are not filled in properly, and may not count votes where there are stray marks on the ballot. Thus, instead of dimpled chads, you can have lightly shaded bubbles, smeared bubbles, partial bubbles, and “x”-marked bubbles—all of which would potentially be ignored by the machine.

The new touchscreen voting systems are also subject to their own unique set of problems. First, touchscreens have proved to be slower to operate than other traditional balloting systems, leading to long lines at the polling places. For those who fail to see the potential for problems with lines, it is worth noting that proponents of suspending the election argued that the punchcards would lead to long lines, rushed voters, and therefore an increase in voter error. Touchscreens are also subject to mechanical failures, and, unlike “paper” methods, may permanently lose data. All this is to say that no voting system is perfect.

Despite the sensible concession that no voting system is foolproof, the court offers the incredible claim that “[p]laintiff’s claim presents almost precisely the same issue as the Court considered in Bush [v. Gore], that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause.”

It is therefore worth pausing here to reexamine Bush v. Gore. Bush v. Gore was not about the use of punchcard ballots, even though Florida counties, like California, used both punchcards and optical-scan ballots. Rather, the Equal Protection claim in Bush v. Gore concerned the way in which the recount was implemented. The Court made clear that different counties could use different systems for carrying out elections, but they could not treat similar ballots differently:

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

Put simply, the Bush v. Gore ruling was not based on the fact that the counties used different voting systems. Rather, the Equal Protection claim rested on the fact that the Florida supreme court had forced a recall without providing safeguards—a brash act which led to similar punchcard ballots being counted differently even within the same county. It was this act of treating similar ballots differently which triggered the Equal Protection violation, not the fact that punchcards were used in one place and not in others.

Proponents of the Ninth Circuit’s opinion will inevitably argue that the principle is the same—i.e., that voters are being treated differently from county-to-county. This fails to recognize that, while subject to error, the punchcard system is not so unreliable or “different” compared to other systems that it threatens the right to vote, or substantially dilutes votes from county-to-county. By contrast, Florida’s different and changing standards concerning how much chad must be removed from similar punchcards for a ballot to qualify as a vote did undermine the rudimentary requirements of equal treatment.

This subtle distinction was lost on the Ninth Circuit, which boldly held that “the effect of using punchcard voting systems in some, but not all, counties, is to discriminate on the basis of geographic residence.” While the Left Coast court attempted to limit the reach of its result, it is hard to see how this reasoning does not create a series of ever-increasing obligations for the states. After all, the most guidance the court gives is to say that the punchcard system creates an error rate that is statistically significant—something which could likely be said about optical-scan ballots as compared to next generation touchscreens. Under the Ninth Circuit’s approach, higher error rates are not constitutionally acceptable, and therefore a state would seem to be forced to invest in the newest-possible voting technologies to avoid uncounted votes.

Aside from the obvious cost and the dubious constitutional jurisprudence behind such a decision, it is easy enough to see how quickly the Ninth Circuit’s reasoning leads to absurd results. For example, it is difficult to see how hand recounts can ever be permissible under the Ninth Circuit’s Equal Protection standard, given that hand counts tend to be among the least accurate means of vote tabulation. Furthermore, as a practical matter, states will be forced to take an all-or-nothing approach to implementing technology for fear that using a new voting device in one county will open the state to suit. This will have the unintended consequence of delaying the implementation of more-accurate voting technologies until the state can afford across the board upgrades.

Given the Ninth Circuit’s bold move, the ball is now before the United States Supreme Court. The justices have been reluctant to revisit Bush v. Gore after the firestorm of criticism which followed that opinion. ( I still wonder: Where is the criticism for the Florida supreme court, whose erroneous decisions forced seven U.S. Supreme Court justices to find constitutional violations with their mandated recount system?) While the Court has successfully avoided other ballot questions, like Lautenberg’s replacement of Torricelli on the ballot in New Jersey, it does not have that luxury in this case. Here, the Ninth Circuit has relied squarely on Bush v. Gore, and has applied it in such as way as to create a precedent which casts doubt on established voting systems throughout the country. Should this case gain traction in other courts, no state or municipality would be able to hold an election for any position from president to dog catcher with punchcard ballots. While the U.S. Supreme Court will loathe the prospect of revisiting Bush v. Gore, the Ninth Circuit, by reclaiming its rightful title from Florida’s supreme court, has made such a visit necessary.

Robert Alt is a fellow in constitutional studies and jurisprudence at the John M. Ashbrook Center for Public Affairs at Ashland University.