What’s the hurry?

by Micah on September 17, 2003

Bruce Ackerman has an op-ed piece in the New York Times today arguing that the Ninth Circuit should not delay the vote in California. I have to admit that I was a bit surprised by Ackerman’s willingness to limit the possibilities raised by the equal protection claims upheld in Bush v. Gore. Here’s his argument:

This time around, the candidates in California have already invested heavily in a short campaign. Their competing strategies have been designed to reach a climax on the Oct. 7 election date. If they had known they would have to compete until March, they would have conducted their campaigns very differently. By suddenly changing the finish line, the three-judge panel of the United States Court of Appeals for the Ninth Circuit disrupts the core First Amendment freedom to present a coherent political message to voters . . . Worse yet, the decision disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort. State law promised them a quick election if they completed their petitions by an August deadline.

It also offered them a fair election. It seems reasonable for a court to postpone an election long enough to permit the installation of fair voting systems, rather than going through with error-prone machines and then trying to sort out the mess afterwards.

What about Ackerman’s First Amendment argument? It always helps to have the text around. So the First Amendment says: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The core of the First Amendment may be the protection of political speech. But even if that’s right, it’s a big stretch to say that its core is the freedom to present a coherent political message to voters. That’s either rhetorical flourish or wishful thinking. Ackerman is asserting a First Amendment right to have an election run on time. I’m sure it would be a good thing to have prompt elections, and there may be statutory law requiring it. But, if there’s a constitutional claim involved here, it is the right to have one’s vote counted equally in a fair election. Ackerman thinks that this claim isn’t strong enough to override his First Amendment concerns. I think those concerns are overstated, at best. But even if they aren’t, this is an opportunity to see whether the Supreme Court was serious about the equal protection arguments of Bush v. Gore. It’s worth waiting for a decision about whether the Court meant what it said about guaranteeing fair elections.

{ 26 comments }

1

PG 09.17.03 at 4:43 pm

Er… aren’t the 14th and 15th amendments the ones most applicable to voting?
One could argue that the 1st amendment already has been limited in the electoral process because one can make rules about campaigning (cannot update website with X days of election, can spend X amount of money). The recall itself is functioning under California state law, not the federal constitution.

I’d say the Bush v. Gore decision was technically correct in throwing it to the legislature under the 12th amendment, but they focused on the selectivity and lack of standards in the recounting process, which in the majority’s opinion made inequality in the counting of votes even more likely than it was absent a recount.

2

Brett Bellmore 09.17.03 at 4:45 pm

I must admit to being curious: Why is there any reason to believe that an election utilizing electronic voting machines which neither the voters nor the elections workers have any experience with, will be any less error prone than an election utilizing punch cards which the elections workers, and almost all of the voters, DO have experience with?

We’re to believe that voters who can’t follow the directions for voting with punch cards, (And to be blunt, the problem IS exactly that, not error prone *machines*, but error prone *voters*.) will instantly demonstrate competence with computerized voting machines? Puleeze! If you believe that, I’ve got a bridge to sell you.

Bottom line, IMO: Screwing up your ballot because you’re stupid, ignorant, or careless, isn’t a violation of your voting rights, because you did it to yourself.

3

Matt Weiner 09.17.03 at 5:31 pm

Brett,
(1) There’s also the fact that a lot of polling places will be closed.
(2) People using error-prone machines have to avoid errors to have their votes counted. People not using error-prone machines, or machines that have mechanisms to deal with errors, get to vote even if they’re stupid, careless, or unfamiliar with the machines. That’s unequal. (Even granting your point about the inferiority of the voters who have their votes thrown out–whic h I by no means do.)
(3) I don’t like computerized voting myself, but optical scan ballots have been shown to reduce error rates. On the insanely high equal protection standard installed by Bush v. Gore, there seems no alternative but to rule that it violates equal protection to have voting systems with varying error rates. Chris is right–the question is whether the Supreme Court meant it, or was just angling for results.

4

Terry 09.17.03 at 5:50 pm

Question: I’ve heard a lot about how “these are the same machines used in the last election.” However, were the punchcard voting machines located everywhere during the last election? Are the electronic voting machines which were to be used on October 7th new? If so, then the whole “we’ve used these machines before” b.s. doesn’t apply.

The state admits that the punchcard system has a higher error rate than machines, meaning that more of those votes would be discounted, disproportionately hurting minority voters (due to their being in primarily minority-heavy areas).

Does anyone know when these machines were put in place?

5

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6

Brett Bellmore 09.17.03 at 6:53 pm

Matt, if the replacement was going to be optical scan, I’d have fewer complaints. That is, if anything easier to use than punch cards, inherently leaves a paper trail to enable recounts, and if implemented right, catches most catagories of mistakes before the voter leaves the polling place, so they can fix them. Optical scan is currently the best voting system available.

But it’s my understanding that the replacement for the cards isn’t going to be optical scan, but fully computerized voting machines, which are rather further out of the average person’s experience, and critically, do not provide a paper trail for recounts. They’re the sort of machines that make the hair of computer engineers stand on end.

Regarding Gore v Bush, the problem there wasn’t that some of the voters used different technologies, but rather that voters who used the same technology to vote were having their ballots counted according to different CRITERIA depending on where they voted. (And, to be a bit cynical, depending on whether they voted the way the counters liked, probably.) Not the same thing.

And all the Supreme court did was let the count conducted according to Florida law, (Rather than the Florida Supreme court’s latest subtitute for that law.) stand. The 9th circuit is looking at a “remedy” that violates state law, not one the re-enstates it.

7

nnyhav 09.17.03 at 7:08 pm

If this stands, it will of course be cited as precedent for delaying the next national election, ’til, say, 2008 …

8

boban 09.17.03 at 7:19 pm

A reasonable solution would be to randomly discard the appropriate percentage of ballots from the non-punchcard machines. The election could then be held on time, and all voters would be treated equally.

9

aphrael 09.17.03 at 7:26 pm

Brett – the replacement technology is determined by each county. You’re right that many of them are switching to touch-screen systems, but optical scan ballots are used elsewhere in California and may be used in some of these counties as well.

I can’t fathom the reason why touch-screen voting is so popular; the lack of a paper trail is terrifying.

10

RJ 09.17.03 at 8:31 pm

I totally agree with your comments, aphrael. What I don’t understand is why there is not more debate about it. There certainly needs to be in my opinion.

Stealing Democracy

11

Sue 09.17.03 at 8:56 pm

(1) I am perpetually puzzled by people who think that “fairness” means “fairness to the people campaigning for office” instead of “fairness to the citizens who choose among them.” Granted the latter implies a good deal of the former – candidates who are unequally able to communicate are not going to give the voters a fair choice. Nonetheless, forcing all candidates to revise their campaign strategy, postponing the recall by months, not years, seems eminently fair to the potential voters. The alternative is burdening some voters unequally – longer lines because of fewer polling stations, forcing them to travel to unfamiliar stations, fewer workers to explain the system, etc. – which must be the trumping concern.

(2) Of course, the most notable thing about the Bush v. Gore decision was its forthright refusal to set a precedent for voting rights cases. So there is no reason to think that the five justices would apply consistent reasoning, let alone the reasoning that any other person happens to prefer. They’ll do what they would have done otherwise, and to save themselves further hassles, they’ll repeat that the 2000 case was a one-off.

(3) What some concerned wealthy citizens could do is to donate sufficient funds to keep more of the polling places open in the heavily Democratic districts, and more people to explain the punchcard system to each voter, to offset the greater likelihood of error. Or pay to bring in optical ballot systems from other states for this one time. These wouldn’t solve the fairness-to-voters problem, but it would show that the main concern is democracy, not Republican victory at any cost (to others). Even the gesture would be meaningful, though implementing it would be difficult constitutionally.

(4) Computerized voting doesn’t have a paper trail, but neither did the old lever machines. On the other hand, it is harder to test that each machine has not been subverted sometime during the counting process. It can be done well, but the systems that made the headlines aren’t doing it well, or transparently, and the companies have ties to suspicious groups. Oops. Fortunately for them, mass media hasn’t seemed to care about that.

12

Brett Bellmore 09.17.03 at 8:59 pm

Aphrael, on my cynical days I suspect that touch screen voting machines are popular with elections officals and incumbant politicians, precisely because of their frightening features. When ballot fraud occurs, who do you suppose is doing it? Joe Shmoe off the street? No, generally elections officials and politicians. And here they are, picking a system that makes recounts a joke, and ballot fraud indetectable if it happens. Go figure…

BTW, ALL my days are cynical days. ;)

My point about the touch screens is that it makes a hash of the notion that the election must be delayed until MORE RELIABLE machines are in place. That might be a reasonable rationale, if the replacements had been required to be more reliable…

13

RJ 09.17.03 at 9:09 pm

Optical scan machinesare reliable, as are touchscreens if you have a paper trail.

Election reform not only needs to take place, it needs to be done right.

Mercury News | 09/17/2003 | Recall could have silver lining if verifiable voting is a winner

14

Jenny 09.17.03 at 9:09 pm

Brett:

The panel’s problem with punch cards ballots isn’t so much that they believe they are more error prone, but that the CA Secretary of State believes that they are – to the point of outlawing them as of March 2004.

Furthermore, due to this deadline, which has been in place since about 5 months before Davis was re-elected, all but the six(?) poorest counties have replaced, or are in the process of replacing, their punch card ballots. It is this disparity that they felt was a problem. Postponing the election a few months to coincide with this deadline would solve this particular disparity.

With regards to everyone worrying about problems arising because the ballots are unfamiliar, I agree that it may create problems, but I also believe that holding an election on such short notice during a time when many counties are in the process of actually transitioning will create even more problems. (less time to test the machines, less time to educate the public, etc.)

At the very least, (IMHO) the election should have been sheduled for November 10th(?). This would have given everyone more time, and would have saved the State, counties, and taxpayers money, since many counties have municipal elections already scheduled for that date.

aphreal:

Touch screen voting does not always lack a paper trail. My County just decided to replace its punch cards with touch screen machines that print out a receipt that the voter reviews through before telling the machine whether to cast their ballot or toss it.

15

Brett Bellmore 09.17.03 at 10:36 pm

Of course, Jenny, it solves this god-awful (I’m being sarcastic.) disparity at the cost of ordering that the law be violated. Something the courts shouldn’t be doing except in the most extreme situations, which this isn’t.

Your print out is better than nothing, I suppose, but it still leaves the system vulnerable to slightly more sophisticated cheats. With optical scan, the paper trail IS the ballot.

16

tc 09.17.03 at 10:56 pm

There are plenty of ways to run the recall election on time without dropping votes. Have humans check the 3% or whatever percent of punch card votes that the machines don’t pick up, or use paper ballots, etc. Not having the elections when the laws say they should be held is for banana republics.

17

pj 09.17.03 at 11:11 pm

If the 9th Circuit ruling is correct, then wouldn’t a ruling by Republican judges in October 2004 that the Presidential election must be postponed for a year, or two, or twenty, until uniform nationwide voting standards are met, and therefore that George W. Bush must remain president indefinitely, be equally correct?

Ackerman is right that there is no parallel between Bush v Gore and this ruling. Bush v. Gore had the effect of making procedures follow statutory law. The 9th Circuit ruling has the effect of overthrowing election law entirely.

18

aphrael 09.17.03 at 11:12 pm

Jenny – it’s a bit bizarre to describe Santa Clara (home to Silicon Valley), Los Angeles, and Sacramento Counties as among the ‘six poorest counties’ in the state. The counties haven’t delayed bringing in the new equipment because they’re poor; they’ve delayed bringing in the equipment because they’re putting things off until the last minute.

19

aphrael 09.17.03 at 11:59 pm

Apparently someone is suing to prevent the use of computerized systems with no paper trail.

20

Matt Weiner 09.18.03 at 2:07 am

Well, Brett, sometimes the law itself violates the law. Originally, as I understand, people who didn’t vote in te yes/no portion of the recall were forbidden from voting for the replacement. This violated equal protection, and so was nullified. If the Oct. election date would lead to an equal protection violation, then it has to go too, because the U.S. constitution trumps state election law.

We’re in agreement on optical scan. I won’t touch Bush v Gore.

21

the (fair and balanced) talking dog 09.18.03 at 2:46 am

The “six iddy biddy counties” constitute something like 44% of the voters; the state official charged with elections was a party to a consent decree acknowledging that those six iddy biddy counties do NOT have reliable, fair voting machines.

Admittedly, the recall is not a “regularly scheduled” election which the Cal. Sec. of State anticipated when the consent decree was entered, and the recall has its own schedule. BUT… its the ultimate bullshit “Bush v. Gore” type argument that an arbitrary deadline (remember then it was something like December 18th by some Florida statute) is more important than making sure the freaking election as a whole is fair (isn’t it, now?)

22

Biff 09.18.03 at 5:40 am

Regarding Gore v Bush, the problem there wasn’t that some of the voters used different technologies, but rather that voters who used the same technology to vote were having their ballots counted according to different CRITERIA depending on where they voted. (And, to be a bit cynical, depending on whether they voted the way the counters liked, probably.) Not the same thing.

I don’t see the distinction here. If different types of voting equipment are used, votes are, by definition, being counted by different criteria.

23

Brett Bellmore 09.18.03 at 11:21 am

The distinction is simply that elections officials do not have the opportunity to assign punch card machines to areas one candidate is doing well in, and optical scan machines to another area where the candidate they like is getting most of the votes. The machines are where they are. Whereas in Florida, they could do exactly that: Switch from strict to lax standards, and back again, based on how it benefited the candidates they liked. THAT was the problem. Not that voters were being treated differently according to where they voted, but that that difference could be assigned after the fact, in order to achieve a preordained outcome.

24

Biff 09.18.03 at 4:21 pm

Not that voters were being treated differently according to where they voted, but that that difference could be assigned after the fact, in order to achieve a preordained outcome.

This is a decent argument. But is it really an equal protection argument, or simply an argument against corruption?

And anyway, couldn’t a state also assign different types of voting equipment to different municipalities (with different partisan tendencies), in order to increase the chances of achieving a particular outcome? What would be the essential difference between such a scheme and the one at issue in Florida 2000, from an equal protection standpoint?

Finally, having just reread the majority opinion in Bush v. Gore, I can’t find this line of reasoning anywhere in there. They repeatedly state that it is unfair to conduct the recount without a uniform statewide standard, but they don’t offer this as the reason why.

25

Brett Bellmore 09.18.03 at 9:08 pm

That’s just exactly it: The lack of a uniform standard was what would have allowed the counters to use one standard in the case of Gore ballots, and another standard in the case of Bush ballots. Elections and arbitrary discretion; Not a good mix.

26

Y 09.18.03 at 9:39 pm

Good piece by Dahlia Lithwick Recalling Bush v. Gore.

She thinks the en banc panel may well reverse (or join the fun)…

Reading the opinion, it’s hard to escape the fact that the court seems to take pleasure in applying the broad and indefensible legal principle laid out in Bush v. Gore even more broadly and indefensibly.
[…]
The fun has to stop now, of course. The logic of the panel (and of the original Bush decision) would hold that any election with differing voting apparatus is inherently unconstitutional. And that renders every election, past and future, illegal.

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