Friday, Jul 4, 2008
Partisan infighting, a crucial election, dubious voting machines -- now it's California, and the Rehnquist gang may decide this one, too.
Sep 16, 2003 | The U.S. Court of Appeals in San Francisco picked a fight with the Supreme Court Monday, and Gov. Gray Davis may prove to be the winner.
In a classic case of "what goes around comes around," three Democratic judges on the U.S. Court of Appeals for the Ninth Circuit held Monday that the Supreme Court's 2000 decision in Bush vs. Gore compelled them to postpone the Oct. 7 recall election. The reason: Punch-card voting machines -- like those that produced the hanging chads of Florida fame -- are so prone to error that voters in the six California counties that still use the machines are 2.5 times more likely to have their votes thrown out than are voters in counties with more modern balloting equipment.
Such county-by-county unfairness "presents almost precisely the same issue" the Supreme Court addressed in Bush vs. Gore, the Ninth Circuit judges held, and it must be resolved before California voters go to the polls. "The choice between a hurried, constitutionally infirm election and one held a short time later that assures voters that the rudimentary requirements of equal treatment and fundamental fairness are satisfied is clear," the judges wrote. "These issues are better resolved prophylactically than by bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory."
In Bush vs. Gore, one of the most controversial rulings in Supreme Court history, the nation's highest judicial body stopped the Florida recount -- and in effect handed the presidency to George W. Bush -- because it ruled that the different standards used in counting the ballots violated the Equal Protection clause of the 14th Amendment.
Recall supporters vowed to appeal the decision either to the full Ninth Circuit court or directly to the Supreme Court, and legal experts agreed that it is unlikely that Monday's ruling will stand. But either way, it appears to be a victory for Gray Davis. If the ruling survives, Davis gets more time to repair his image -- and a shot at having the election on March 2, 2004, the day that California Democrats will likely turn out in large numbers to vote in the state's presidential primary. If the ruling is reversed, the specter of Florida 2000 will be all over the recall race, reinforcing every argument that Davis has already made about the recall being a right-wing power grab in the tradition of Bush vs. Gore.
Democrats jumped on that theme immediately Monday. Ripping right into the raw wounds of 2000, Democratic Rep. Brad Sherman issued a statement Monday afternoon predicting the future machinations of White House strategist Karl Rove and conservative Supreme Court Justice Antonin Scalia. "If Karl Rove wants the election to take place on October 7, Scalia will redefine the doctrines announced in Bush v. Gore to read as he always wanted them to read: Voters have an equal protection right to have their votes counted accurately and the federal courts should intervene to enforce these rights when, and only when, court action is consistent with the needs of the Republican party."
Republicans were just as quick to use the decision as a way to appeal to their base. Republican state Sen. Tom McClintock, who is running third behind Democratic Lt. Gov. Cruz Bustamante and body-building actor Arnold Schwarzenegger in the race to replace Davis, called the Ninth Circuit's decision a "distraction" from a liberal appellate court that has become the "laughingstock" of the nation. "I want to remind people that the Ninth Circuit is the most reversed court -- the same court that banned the words 'under God' in the Pledge of Allegiance," McClintock said in a statement.
If Monday's decision puts the judiciary -- both the Ninth Circuit and the Supreme Court -- uncomfortably in the middle of electoral politics, the judges involved have only themselves to blame.
In the process of handing the White House to George W. Bush in 2000, the conservatives on the Supreme Court had to embrace voting-rights arguments under the Equal Protection Clause of the U.S. Constitution that they likely never would have considered otherwise. And in postponing the recall Monday, the three liberal Ninth Circuit judges slammed those arguments right back in the Supreme Court's face.
The conservatives on the Supreme Court "walked right into this," said Georgetown University law professor Mark Tushnet. By inserting themselves into the presidential election -- and by doing it using a doctrine they normally would not have embraced -- the justices opened themselves up to questions about their political motivations, he said.
Get Salon in your mailbox!