Michael Alvarez, associate professor of political science at the California Institute of Technology, applauded the decision while expressing concern about potential fraud. He said that if the decision had gone the other way it could have "snuffed out" other experiments with early voting systems. For example, Alvarez noted that during the 2000 presidential election, Los Angeles County utilized touch-screen voting at selected locations before election day. "The feeling of a lot of people in the Caltech-MIT Voting Project is that we would like to see more experiments like this, rather than more voting by mail on demand," as in Oregon, "which has a security risk."
In Wednesday's decision, the 9th Circuit acknowledged that the law Congress enacted in 1872 specifically rejected the idea of voting on multiple days.
However, Judge Andrew J. Kleinfeld's opinion on Wednesday noted that although the absentee balloting that Congress had mandated for federal elections was less sweeping than Oregon's, Congress had expressly frowned on restrictions against absentee balloting.
When a court is confronted with conflicting laws, Kleinfeld wrote, "we are under a duty to construe statutes harmoniously where that can be done."
In this instance, Kleinfeld wrote, that could be done because of a 1997 Supreme Court decision, Foster vs. Love. In that case, the high court overturned a Louisiana statute that required all candidates for the U.S. Senate and the House of Representatives to run together in an open primary. If a candidate won a majority in the primary, that candidate was elected, meaning there was no vote in November.
The Supreme Court held that Louisiana had impermissibly "provided for federal elections before federal election day." However, in Oregon, no final selection is made until election day, the court noted. Consequently, the statute is in compliance with the federal election day statute, Kleinfeld wrote. Judges William A. Fletcher and Ruggero J. Aldisert joined in the decision in Voting Integrity Project vs. Keisling, No. 99-35337.