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An Act of Courage

9th Circuit ruling guards the precious right of voter equality

September 16, 2003|Erwin Chemerinsky | Erwin Chemerinsky, USC professor of law and political science, was co-counsel for the plaintiffs in the punch-card voting case.

No principles in a democracy are more precious than the right to vote and the right to have every vote counted equally. In December 2000, in Bush vs. Gore, the United States Supreme Court stopped the recounting of votes in Florida in the presidential election rather than risk the mere chance that similar ballots would be treated differently.

The U.S. 9th Circuit Court of Appeals on Monday correctly ordered a delay of the California recall election because there is a great likelihood that such inequity would happen Oct. 7.

The court found that the punch-card voting system in place in six counties would cause some ballots to not be counted -- ballots that would have been tallied if the voting were done using machines like the ones in place everywhere else in California.

The 9th Circuit based its ruling on decades of Supreme Court decisions that ensure the right of every adult American to have an equal chance to vote and to have his or her vote counted.

The debacle in Florida brought to public attention the problems with punch-card voting machines. We know they fail to count 2 1/2 times more ballots than the other machines that are used in California, optical scanning and touch-screen machines.

Experts estimate that 40,000 votes would not be counted with punch-card machines that otherwise would be tallied in the recall. This, many believe, would be larger than the likely margin of victory in the election.

Additionally, minority voters would be disproportionately affected, because the counties using punch-card machines have a larger percentage of racial minorities than counties using more advanced technology.

After the 2000 presidential election, a lawsuit was brought challenging the use of punch-card machines in California. The lawsuit ended in a settlement in which the secretary of state decertified punch-card machines, prohibiting their use in the state beginning in March 2004.

Still, the state was allowed to complete the statewide November 2002 elections using the punch-card system because to delay it until new machines could be used would have meant that California wouldn't have had proper representation at the federal or state level.

Obviously, no one foresaw that there might be a call for another statewide election before the regularly scheduled primary election of March 2004.

The current lawsuit was brought as soon as the recall election was scheduled. The six counties that were set to use punch-card machines Oct. 7 -- Los Angeles, Santa Clara, San Diego, Sacramento, Mendocino and Solano -- account for 44% of the state's voters.

The 9th Circuit properly held that it would violate equal protection for voters in these counties to have a far greater chance that their votes would not be counted just because they lived in their counties.

Some have suggested that the 9th Circuit overstepped its authority in delaying the recall election -- Monday's decision will be appealed. Yet the Supreme Court's decision in Bush vs. Gore is a powerful reminder that it is indeed the judicial role to ensure that elections comply with the Constitution.

The 9th Circuit simply held that the election could not occur until constitutionally adequate voting machines were in place. The fact that this may be disruptive does not justify going forward with an election that violates the basic guarantee of equal protection of the laws. The alternative, disenfranchising voters, is far worse than delaying the election until new voting machines are in place throughout the state.

For more than 90 years after the 14th Amendment was added to the Constitution, the Supreme Court rarely used its equal protection clause. But since the 1950s, it has been put to use to overcome segregation and to assure voting rights.

In 1964, the Supreme Court declared that "[t]he right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restriction on that right strikes at the heart of representative government."

On Monday, the 9th Circuit, in an act of courage, followed that lead and the law, properly ordering a delay in the election until voting machines are in place that will equally count every ballot.

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