NEWS ANALYSIS: 9th Circuit Panel Delays Recall Vote

BY HUGO TORRES

Since the beginning of the California recall process, pundits have been labeling it “another Florida,” a reference to the electoral chaos that occurred in the presidential election of 2000. Until the Ninth Circuit decided to step in and delay the California recall election, however, this comparison was more one of rough parallels than of a similar legal situation. Now, however, the Ninth Circuit, basing its decision on the grounds of Bush v. Gore, has decided that allowing the California recall election to go through with outdated voting machines would violate the equal protection rights of voters and has therefore ordered that the election be delayed.

The impact of this is believed to be significant, for delaying the election until March means Governor Gray Davis of California will be facing the recall question on the same ballot that features the Democratic nominees for president. Because of the Democratic presidential primary, Democratic voter turnout would be high, thus granting Democrat Davis a much needed boost.

As a result, the debate over the California recall election has taken a sharp and sudden turn towards partisan politics. While the merits of having a recall in place were hotly debated, most arguments up to this point centered on whether the recall process is a good idea and whether having a recall as a possibility would lead to better government or deter officials from making bold decisions. Now, after having survived challenges in state court and in federal district court, the recall process has generated a storm of controversy that is eliciting strong feelings not seen since the Florida recount.

With its legality under fire, Harvard Law School professors have weighed in on the recall process, both in the media and in class. Professor Einer Elhauge addressed the topic in a recent Wall Street Journal op-ed. Arguing that the Ninth Circuit misconstrued Bush v. Gore, Professor Elhauge charged that the “Ninth Circuit’s decision was as precipitous as it was unsound.” Professor Elhauge also pointed out that partisan politics shaped support or opposition to both Bush v. Gore and the legal challenges to the recall.

Professor Laurence Tribe meanwhile has taken the recall issue and incorporated it into his Constitutional Law class. Professor Tribe summed up the legal arguments in a recent class. “The theory here was very simply that the state of California had decided the punch card ballot system is so inaccurate and misreads so many votes it simply cannot be used any longer in California and they want to phase in new and more accurate systems,” said Professor Tribe, who explained, “to hold an election now as opposed to March would mean the poor counties…would have their votes counted by the less accurate system.”

“What is neat about it is if the case goes to the Supreme Court and if it chooses to hear it, the Court will be under considerable pressure not to make Bush v. Gore a one day wonder.”

“It puts the Court in an interesting position,” noted Tribe.

The recall election has challenged many Californians to consider how much control they want over state politics in between elections. For a state that has pioneered voter-led initiatives, the recall should have surprised no one and perhaps even signals the start of frequent recall campaigns.

For legal scholars and political activists, however, the recall process brings challenges that could bring into question previously held positions. Those who argued about partisan judicial activism in Florida, for example, will find it difficult to support the Ninth Circuit decision as somehow more grounded in legal principles. And those who supported the Supreme Court decision in Bush v. Gore must now come to grips with the predictable implications of that decision.

Should courts play no role in elections? This could result in serious abuses occurring that go unchecked. Should courts closely monitor elections and step in frequently? This could lead to every major election from this point on being fought in court and could give courts the power to, in effect, anoint leaders.

The Ninth Circuit will soon be meeting en banc to consider the case again. The decision they have made makes it clear we have another Florida on our hands. The question is, will their next decision make this the last “Florida,” or lead to recounts and recalls without end?

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