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CALIFORNIA | THE RECALL CAMPAIGN

Supreme Court May Pass on This One

Legal experts say a number of reasons exist for the justices to avoid hearing California case, including the divisive Florida experience.

September 17, 2003|David G. Savage and Henry Weinstein | Times Staff Writers

WASHINGTON — The Supreme Court may soon face an opportunity it might rather refuse.

Three years ago, the justices announced a broad principle of equality in voting when the court stopped Florida's county-by-county hand recounts of the ballots in the disputed presidential election, thereby assuring George W. Bush's victory.

"The state may not ... value one person's vote over that of another," the court said in Bush vs. Gore. This right to an equal vote is violated "when a state accords arbitrary and disparate treatment to voters in different counties."

Because Florida had not set precise rules on when a paper ballot with a hanging chad was deemed a legal vote, the counting standards "might vary from county to county," the court said.

Then, as if worried over what it had done, the justices who joined the court's unsigned main opinion noted they were speaking narrowly of "the special instance of a statewide recount," since the notion of "equal protection in election processes presents many complexities."

The justices let the contradiction between their broad principle and their narrow caveat go unresolved.

Now a federal appeals court decision postponing the California recall election could give the justices a chance to clarify their meaning.

Many legal experts believe the justices will pass that opportunity up.

The appeals court ruling involved the same sort of error-prone voting machines used in Florida in the presidential election.

"The plaintiffs' Equal Protection Clause claim mirrors the one recently analyzed by the Supreme Court in Bush vs. Gore," the U.S. 9th Circuit Court of Appeals judges said. "The use of defective voting machines creates a substantial risk that votes will not be counted," they ruled.

The troublesome punch-card voting machines at issue are used in six California counties, including Los Angeles, but not in 52 others. As a result, the appeals court judges said, the rate of errors would vary substantially from county to county to a degree that would violate the principles of the Florida case.

The 9th Circuit on Tuesday asked lawyers to submit briefs on whether a larger panel of appeals court judges should reconsider the ruling. If they decide to rehear the case, it could consume a week or more.

Eventually, however, whichever side loses in the court of appeals is almost certain to seek U.S. Supreme Court review.

But the court does not have to accept any case for appeal; the votes of four justices are required to hear a case.

Legal experts say a number of reasons could prompt the court to avoid the case.

The justices already have a full docket, including a complicated set of issues involving federal regulation of campaign financing that they heard arguments on during their normal summer recess. They have pledged to resolve that case as soon as possible.

Although the recall is a consuming issue in California, it has no direct impact on the rest of the country. The justices often leave appeals court rulings untouched, even ones the majority thinks are wrong, if the cases do not have national implications.

"I ... don't think they will see the issue of whether the recall goes forward as a question of overriding national significance," said Bradford Berenson, a former Supreme Court law clerk and, until recently, a White House lawyer for President Bush.

Finally, revisiting the December 2000 decision might reveal the deep disagreements among the justices -- and not just the split between the majority and the dissenters.

The Bush vs. Gore opinion resulted from an awkward and hasty compromise. Chief Justice William H. Rehnquist had written an opinion in the case that would have focused on the special nature of presidential elections, according to court sources.

Since the Constitution says the states "shall appoint electors" and gives that power to "the Legislature," the chief justice said the Florida courts erred by getting involved in the vote counting at all.

But that opinion had the disadvantage of sounding archaic and elitist. Most Americans believe they vote for the president and decide the winner, rather than leaving the matter to anonymous "state electors." Only Justices Antonin Scalia and Clarence Thomas joined Rehnquist's opinion.

Justice Anthony M. Kennedy wanted to focus on the broader right to equality in voting that had been written during the civil rights era of the 1960s. He cited decisions holding that the right to vote demands that votes be counted equally.

Since Rehnquist needed two more votes to create a majority, he, along with Scalia, Thomas and Justice Sandra Day O'Connor, were obliged to sign on to Kennedy's opinion.

Because of the press of time, the justices could not resolve their points of disagreement. The result, announced late on the night of Dec. 12, 2000, was an opinion filled with liberal-sounding principles that led to a conservative victory.

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