2 Views of the Ninth Circuit Decision: The Return of Chad, with Gordon Lloyd (San Francisco Chronicle) September 16, 2003

The 2000 presidential election introduced Americans to a new political term: chad. Sometimes hanging, frequently dimpled, occasionally pregnant, chad became the symbol of the lengthy and frustrating conclusion to the election, and a featured character in the U.S. Supreme Court’s decision in Bush vs. Gore.

Now chad is bicoastal. Having been part of the U.S. Supreme Court’s “no recount” decision in 2000, chad forms the basis for the Ninth Circuit U.S. Court of Appeal’s “no recall” decision of 2003. Because of the unreliability of “punch card” voting machines, which produce those chads, a three-judge federal panel has decided that the recall election should be delayed until next year.

Thoughtful citizens both for and against recall should be outraged by the court’s ruling. The court has decided that its view of how democracy should work trumps the will of the people of California and the California Constitution.

The recall had framed an important constitutional debate between citizens who favor the use of direct democracy tools such a recall, ballot proposition and term limits, and those committee to representative government, in which direct democracy is used sparingly. Indeed, recent polling suggested Californians were closely divided on the question. Now comes a federal court ready to impose its own idea of court-ordered democracy–which, it asserts, is paramount over either theory or self-government.

The essence of the court’s ruling is that a more perfect election several months from now is constitutional and a less perfect election on Oct. 7 is not.

In doing so, the federal court stretches the recent Bush vs. Gore decision well beyond its intended reach. Bush vs. Gore was intentionally a narrow ruling, confined to a retroactive recount under the jurisdiction of a single judge. The Ninth Circuit, however, is not content to address these issues retroactively, but instead fires a pre-emptive strike, reshaping the electoral process itself.

Further, the Supreme Court in Bush vs. Gore did not intend to trigger a series of court reviews of voting technologies. Indeed, it explicitly recognized the validity of a variety of methods of voting, saying only that if you recount one kind of ballot, you should recount them all.

While the federal court acknowledges the California secretary of state’s ruling that punch-card voting should be replaced by January of 2006, the court takes it upon itself to accelerate the process, noting that these ballots “are intractably afflicted with technologic dyscalculi.”

We submit that the Ninth Circuit is intractably afflicted with something far more serious, namely a disregard for the will of a people to govern themselves. The California Constitution requires that a recall election be held 60-80 days from certification. The requisite signatures have been submitted, the certification has been made, and the urgency of the election is felt from Eureka to San Diego. Sacramento will do little business, even on its huge budget problems, until this is resolved.

Yet the court concludes, in its 66-page opinion, that “the balance falls heavily in favor of postponing the election for a few months.” But is an error-free election really a higher priority than carrying out the will of the people and their constitution by moving forward with this extraordinary election on a timely basis?

Contrary to the Ninth Circuit’s notions of equal protection, California voters do not need to be protected from themselves. The notion that people cannot be trusted to conduct elections themselves, but need the approval of a paternalistic court, flies in the face of both direct democracy and representative democracy. Now we can only hope another court, the U.S. Supreme Court, will review this decision, both to clarify its limited Bush vs. Gore decision, and to set the California voters and their recall process free.

This op/ed appeared on Page A-25.