SoCalLawBlog actually thinks through the logic of the 9th circuit decision in the case of 9th Circuit Morons v. Every Sensible Adult in California, and comes to a startling conclusion:
I read the 3-judge panel decision as saying the following: Bush v. Gore held that differing standards between a state's counties as to how similarly marked ballots would be counted is a violation of the Equal Protection Clause. Therefore, it must be violation of the Equal Protection Clause if counties use different voting mechanisms if it can be shown that the mechanisms differ in their error rate of vote tabulations. Otherwise, counties using mechanisms with higher error rates would risk their voters being disenfranchised in not having their votes count. Thus the only real remedy is to have uniform voting mechanisms throughout the entire state.
It seems to me that absentee votes provide the Achilles' heel for this line of reasoning.
First off, a delay in the California election would require that those who have already voted via absentee ballot have their votes thrown out. Therefore, even if you accept the court's reasoning, you are forcing actual voter disenfranchisement in order to prevent a mere potential disenfranchisement. This forces the court's decision to collapse under the weight of its own logic.
Secondly, it seems to me that the decision would likely force the end of absentee voting in all future elections.
Let me confess up front that I have never voted via absentee ballot, so I don't know for sure how the process works. But what is clear is that whoever votes on an absentee ballot would have to use the same voting system as those casting votes in the state on election day. Would California servicemen overseas have to have access to a touch-screen voting machine in order to vote? How likely is that going to happen? If they merely used a punch-card ballot or hand-written ballot, then that would violate the provisions of the court's decision if I am reading it correctly. The only way to correct the disparity would be to get rid of absentee voting altogether.
I have only one thing to add -- Bush v. Gore did not hold that differing standards of ballot evaluation between different state counties would be counted is a violation of the Equal Protection Clause. The decision as I understand it was about differing standard's of ballot evalutation within the same county. Of course, as everyone knows, California has a uniform standard across the state for evaluation punch ballots -- and today on KFI the LA County registrar said that the county has never had even a single ballot evaluation problem in all of the years she's worked as County registrar. And no dimpled chads ever. The LA County equipment simply isn't in the poor condition of the Florida equipment.
Conny McCormack also said today that the claims of the ACLU regarding punch balloting -- claims grounding the 9th circuit decision -- were "falactious" and "utterly erroneous". She said there were no Florida style problems with the punch ballot in California -- none.
She also said that the 9th circuit decision moving the recall election to the primary election of March 2004 would likely to cause massive chaos at the the voting place, and most likely would create a split ballot system deeply confusing to voters, who would also face the confusion of using a new balloting system for the very first time.
McCormacks' amicus brief to the court is here (pdf)
Posted by Greg Ransom
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