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THE STATE / THE RECALL CAMPAIGN | IN THEIR OWN WORDS

Excerpts of Legal Briefs on Both Sides of Argument

September 18, 2003

* From a brief filed on behalf of Ted Costa, an organizer of the recall campaign, in support of a review of the ruling:

The panel's decision brushed off the importance of holding elections on time and pursuant to the rules established before an election contest begins. The panel's decision placed little weight on the state's interest in holding elections in accordance with its established procedures, free from mid-election changes.... Indeed, the panel went so far as to say that a state does not even have a rational basis to follow its own constitutionally prescribed election schedules. But contrary to the panel's decision, there is a significant state interest in adhering to the timetable established in California's Constitution. Prescient wisdom led the drafters of the recall provision to require a quick vote, so that any cloud over an elected official would be resolved promptly. Moreover, there is the strong potential for manipulating the outcome of an election by playing with its timing.... While some may laud the panel for its zeal in defending voting equality in the name of federal supremacy, that unprecedented zeal directly contradicts the Supreme Court's direction that federal courts facing such circumstances should instead exercise proper judicial restraint.

*

The panel's decision effectively entrenches for at least an additional five months a governor whose recall was petitioned by nearly 2 million eligible voters. It would subject the citizens of California to an additional five months of rudderless leadership, precisely at a time when the need for leadership is most urgent. The problems facing California are grave, ranging from near insolvency of its treasury, to the flight of jobs and businesses, to a hopelessly broken workers' compensation system, to a stalemated Legislature. Those problems cannot be tabled for month after month while the governor campaigns full time to keep his job....

Waiting disenfranchises all voters for the next seven months, stripping them of their recall right and potentially protecting the present governor from the people's will. The state has a compelling interest in avoiding this outcome.

*

The panel incorrectly balanced the hardships when it sacrificed the rights of millions of California voters to cast their ballots on Oct. 7 because of the possibility that at most 40,000 votes may not be counted. No party is suggesting that those 40,000 votes don't matter. But at the same time the law recognizes that as long as mechanical voting systems are imperfect, some votes run the risk of not being counted.

* From a brief by the American Civil Liberties Union, a plaintiff in the lawsuit, opposing further hearings on the issue.

It is rare -- and in California, literally unprecedented -- for the state itself to concede the defects in its voting machinery, both by legally decertifying that machinery as "obsolete, defective, or otherwise unacceptable," and by acknowledging in its pleadings that punch-card systems are an "old technology" that is "aggressive[ly] [being] eliminate[d] ... statewide." Thus, this case does not concern jurisdictions within a state insisting upon a variety of technologies for arguably legitimate parochial reasons in a context of deliberately decentralized decision-making within which separate localities might reasonably make their own distinct trade-offs between more accurate (and thus more costly) voting equipment and greater investment in public education or other infrastructural endeavors. Rather, the constitutional violation in this case is the unfortunate consequence of the state's centralized insistence on squeezing this election into the brief window in time before all of California's counties will have made the transition, already begun but not completed, to modern, accurate, and state-certified voting equipment.

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Any fear that the panel's decision will unleash a wave of garden-variety challenges to nonuniform voting technologies aimed at enjoining state elections is at best farfetched.

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