September 15, 2003

Ninth Circle of Hell

The wacky Ninth Circuit does it again. Today, the most liberal appeals court in the nation ruled the California recall election had to be postponed because some counties were going to use punch ballots. The court divined from that punch ballots are unconstitutional.

How long did "unconstitutional" elections take place just because the ballot was in punch form? Do we invalidate the thousands of previous elections that used punch ballots? Hindrocket at Power Line asks the same questions.

What would the court have preferred? Give all voters a scrap of paper and a pencil to write their choices down? How about going back to ancient Greece and give every voter colored rocks? Or how about getting rid of the silent ballot entirely, and just make voters declare their choices by voice?

In the AP story, the court sided with an ACLU argument that punch ballots are prone to error. Well, since humans are fallible, any ballots can result in mistakes.

Here's Daniel Weintraub's first thoughts about the decision:

In the rush to evaluate the potential effect of delaying the election until March, don't overlook the short-term effects that will be present no matter what the Supremes do with the Ninth Circuit Court decision. One is voter anger or frustration. I predict that the California electorate will be most unhappy with judicial intervention in their election. They might want to take that anger out on the closest institution, which right now would be the governor's office. Another effect is to force the candidates to campaign in a sort of suspended animation, with voters perceiving that there is a delay even as the candidates have to assume that the election will go forward on schedule. The court fight itself will overwhelm all other issues in the race for the next few days, and the position the candidates take in the legal battle could well end up becoming important in the campaign itself should it resume quickly.

For quality linkage, Greg Ransom is tops. He points out that the judges who made the ruling were all appointed by Democrats. Combine that with Justene Adamec at Calblog who noticed that by moving the recall election to March 2, 2004, it comes just in time for the Democratic primary.

On a deviously funny note, Xrql (some weird hacker name?) found this hidden provision in the constitution:

No state shall ... use punch card ballots... in any specially-called election against a Democrat incumbent. Nothing in this section shall preclude such state from using punch card ballots to re-elect said Democrat in a regularly scheduled election.

Steven has used punch ballots and did all right. But he does have a PhD.

"Appeals Court Delays Calif. Recall Vote"

UPDATE: Steven has come to the most logical conclusion from the Ninth Circuit's decision.

Also, James notes that Gore v. Bush should have little bearing on the use of punch ballots:

The trouble is, the per curiam decision doesn't say that punch card ballots are unconstitutional, just differential standards of doing manual recounts on them.

UPDATE 2: Eugene Volokh makes an excellent point that switching to a new voting system would have its share of problems. Wouldn't that be ruled unconstitutional according to the Ninth Circuit's reasoning? [via A Fearful Symmetry]