Opening Argument – When Judges Should — and Should Not — Intervene In Elections

National Journal

The three federal appeals court judges who gave California Gov. Gray Davis a new lease on life on September 15 delighted many a liberal law professor by purporting to follow Bush v. Gore, the Supreme Court precedent that Democrats most love to hate.

One flaw in the analysis is that while the California decision suggests that mere variations in the accuracy of voting machines from one county to the next are unconstitutional, Bush v. Gore suggests the opposite. Perhaps some of the judges’ colleagues on the U.S. Court of Appeals for the 9th Circuit noticed: The recall decision, Southwest Voter Registration Education Project v. Shelley, has been stayed, pending review by an 11-judge panel.

In any event, the large differences between the two cases help illustrate when federal judges should — and should not — intervene in elections. They also point to why, notwithstanding all the hysterical attacks by legions of law professors, Bush v. Gore was a reasonable interpretation of the Constitution.

The three judges, who are among the more liberal members of the famously liberal, often-reversed 9th Circuit, upheld a lawsuit by the NAACP and other groups seeking to postpone California’s recall vote for several months so that all of the state’s voters will be able to use new, more-accurate voting machines.

The court’s logic was so sweeping as to cast doubt on the constitutionality of the election systems of any and all states in which one or more counties buy modern, more-accurate voting machines sooner than others do. The crux of the opinion was that "voters in counties using pre-scored punch-card balloting will have a statistically more probable chance that their vote will not be counted than voters in other counties," and that this violates the equal protection clause.

It apparently escaped the judges’ attention that postponing the recall vote until the next logical date — March 2, when California will hold its statewide primary — might cause even more vote-counting problems than would proceeding with the old machines on October 7, as scheduled by state officials. Los Angeles County Registrar-Recorder Conny McCormack told The Los Angeles Times that the new machines to be used in the primary election on March 2 — the date to which the recall would presumably be postponed — will not be able to handle the lengthy recall ballot and the primary ballots at the same time. "No one even asked the largest county in the state if we had the capacity to run it in March," McCormack said. "The answer is no." Oops.

The California decision derives a modicum of plausibility from the confusing logic of the Supreme Court’s one-person, one-vote precedents and some other election-law precedents. But the three judges were quite wrong to assert that the case "presents almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the equal protection clause."

To the contrary, Bush v. Gore asserts that unequal methods of counting votes among counties ordinarily do not violate equal protection. As Justice David H. Souter said in his partial concurrence, "The Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on." The majority opinion made the same point, but less explicitly.

The constitutional problem in Bush v. Gore was not the fact that some Florida counties had used old, relatively error-prone punch-card voting machines. It was the rushed, chaotic, unreliable process that the Florida Supreme Court had invented — after Bush had won the machine recount mandated by the state’s election code — to keep alive Gore’s effort to overcome Bush’s freakishly small margin of victory. That court had invented a right to an unprecedented statewide manual recount, while allowing local elected officials to choose vote-counters and to use subjective, non-uniform, inconsistent, and thus easily manipulable, standards to decide whether to count ambiguously marked individual ballots as votes for Gore, Bush, or neither.

In short, the Florida court’s plan seemed less reliable than it needed to be and far more vulnerable to partisan gaming than the machine recount that Bush had already won. It seemed likely — designed, in my view — to stack the deck in Gore’s favor.

The Supreme Court stated the problem less starkly. It said that when "a state court with the power to assure uniformity has ordered a statewide recount, … there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

The majority opinion identified four aspects of the Florida court’s recount that collectively amounted to a violation of the equal protection clause: the absence of specific, uniform standards for deciding which of many "undervotes" to interpret as legally valid votes; the use of untrained and unsupervised vote-counters to do the interpreting; the arbitrary exclusion from the planned recount of "overvotes," which were twice as numerous as undervotes but which Gore apparently considered less likely to help him; and the inclusion in the vote totals of a completed manual recount of the most heavily Democratic precincts of Miami-Dade County, without regard to whether there would be time to look for uncounted undervotes in more-Republican precincts.

(Justices Souter and Stephen G. Breyer agreed with their five more-conservative colleagues that the Florida court’s approach violated equal protection; they dissented from the more debatable decision that there was no time to begin anew.)

None of these equal protection problems exist in the California case, and no county’s voting machines were chosen to favor either side in any election. This is not to say that the September 15 decision was legally frivolous. The state itself has conceded that the disputed punch-card machines are "archaic," that they fail to count a relatively large number of ballots, and that the counties still using them have disproportionately large numbers of minority voters. The state has also pledged in a court-ordered consent decree that all counties will phase out the old machines by March 1, 2004.

Common sense and some precedents suggest that in a sufficiently extreme case, a court might be justified in ordering a county or state to phase out obsolete machines if more-accurate machines are available at reasonable cost. But any such order should set a timetable that: 1) does not unduly disrupt the state’s scheduling of its elections, 2) does not seem likely to skew the election’s outcome, excepting any effects attributable to more-accurate vote-counting, and 3) allows time to phase in new machines without creating new problems.

The California decision flunks the first and second tests and, McCormack’s statement suggests, quite possibly the third. The three judges cavalierly cast aside a provision of the California Constitution requiring that recall elections be expedited to limit the duration of the uncertainty hanging over the state. Their decision ignored the state’s interest in removing the governor, if that proves to be the will of the voters, without undue delay. And, of course, it is widely viewed as likely to improve Gray Davis’s chance of survival.

Should the Supreme Court step in to reverse this decision if the 11-judge panel does not? It depends, in my view, on how many of the justices would dissent.

This brings me back to Bush v. Gore: While its legal analysis was sound, I wonder whether it would have been wiser for the justices to punt the 2000 election brawl to Congress. The reason is that the 5-4 conservative-liberal split that made Bush president gave rise to possibly unfair but entirely understandable suspicions that all nine justices were driven not by legal principle but by their partisan political preferences. Those suspicions were fanned by the fact that the five justices who overturned the Florida court are ordinarily more deferential to state courts and states’ rights than the four dissenters.

A decision overturning the California ruling would also be legally sound. But like Bush v. Gore, it would gratify Republicans and anger Democrats. And if the four more-liberal justices were once again in dissent, the ugly appearance of partisan judging would be unavoidable.

A 9-0 decision to let California proceed with its crazy recall election as scheduled, on the other hand, would be a very good way for the justices to strike a blow against government by judiciary while putting the Bush v. Gore unpleasantness behind them.