[I know I’m a bit late to the dance with this one, but I had it almost ready to post much earlier today when the exigencies of the non-blogging life intervened. But I digress . . .]
It will surprise no one, I suspect, to learn that I believe the 11-member en banc panel of the 9th Circuit Court of Appeal was correct in reversing the original 3-judge panel and in affirming the decision of the U.S. District Court that there is no good cause to prohibit the California gubernatorial recall election from proceeding on October 7, even if some counties are still utilizing punchcard voting systems. The en banc decision hangs its hat on the failure of the ACLU to meet its burden of proof: in order to obtain the injunction against the election proceeding with punchcard machines in place, the ACLU was obliged to show that the likely threat to constitutionally protected interests was so compelling in advance of the actual election (which we join already in progress) that it would trump the interest of the State of California in conducting that election on the schedule otherwise required by the recall statute. In order to meet that burden, the ACLU essentially had to establish (as it tried to do) that punchcard voting is always constitutionally unsound, which it was unable to do.
Here is the key difference between this case and the rationale of Bush v. Gore: when the U.S. Supreme Court became involved in the Florida recounts, the election itself had already taken place and the issue related to the proper method of counting the ballots, including ballots cast with punchcard equipment. All of the suggestions in the Supreme Court’s decision that punchcard equipment is problematic stemmed from the fact that the number of votes cast for candidates Bush and Gore were in fact so close to one another that the “ordinary” error rate of punchcard equipment, and the vagaries of counting unclearly executed punchcard ballots, were actually going to make a difference. In California, we will not know whether there is any doubt about the accuracy of punchcard results until we see how close the initial vote counts turn out to be. Why? Because even if some number x of voters are “disenfranchised” because their votes are recorded or counted incorrectly by punchcard equipment, that disenfranchisement is purely theoretical unless their correctly-tabulated votes (i.e., the votes that each of those voters intended to cast and took the necessary steps to cast correctly) would change the outcome. The original 3-judge panel estimated that "approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all." If the initial count shows Gray Davis being recalled or retained by a margin of, say, 100,000 votes -- less than a third of the difference between Davis’ count and the count for Republican Bill Simon in the original gubernatorial election, considered to be a very close race -- it will not matter whether those 40,000 votes were accurately counted or not: even if every one of them had been cast in the opposite way from the way the count goes, they would not change the outcome.
It is right and proper to be concerned, as the ACLU was, that “every vote should count.” But that concern cannot blind us to the way that elections actually work. Elections are by definition a zero-sum game: for each candidate who prevails, every other candidate must lose. In the end, the only votes that individually “count” -- that actually affect the big-picture outcome -- are the votes equal to the number by which the winner’s total exceeds the totals of the losers. Every other vote ceases to count when it is cancelled by a countervailing vote for some other candidate. (And if you throw in the federal electoral college system, the losing candidate’s votes count for even less. No one who voted for George W. Bush in California had any say whatever in the selection of the President, because California’s electoral votes went 100% for Al Gore, as they would have done had Mr. Gore’s total in the popular vote exceeded Mr. Bush’s by even one.) So, each voter who voted in favor of the winning candidate can indulge in the fiction that his or her individual vote was one of those that actually produced his candidate’s victory; the losing candidate’s voters are all effectively nullified, like subatomic particles meeting their opposites, and “count” for nothing.
It is certainly possible that either the recall vote or, if the recall is sustained, the vote for Gray Davis’ successor will be sufficiently close that highly precise counts will be needed to determine the true outcome. I hope that is not the case, because it will only prolong and compound the rest of the nation’s misguided view that we Californians have all run away to join the circus. Even if the election is a close one, the real threat of punchcard equipment is hardly a certainty: after all, with all the publicity concerning the system’s potential problems, one would hope that most voters will actually take the time to look and see whether their punch card (a) has the correct number of holes in it and (b) in the right places [each voting option has a number, which should match on the punch machine and the card] before it is deposited in the box. As the 9th Circuit concluded, the mere possibility of problems is not the equivalent of actual problems, and it is best that Californians have the opportunity to show that they can pull this election off before a court jumps to the conclusion that we can’t.
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