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September 16, 2003

Bush v. Gore Outlives Its Limited Warranty for Use in California


The Supreme Court's decision in Bush v. Gore was meant to be a ticket good for one ride.

"Our consideration is limited to the present circumstances," the justices said in their unsigned opinion in 2000, "for the problem of equal protection in election processes generally presents many complexities."

Three judges on the federal appeals court in San Francisco, all appointed by Democratic presidents, decided yesterday to use it for another ride anyway.

The judges ruled that California's recall election could not be held as scheduled, on Oct. 7, because voters in six counties would still be using the same dreaded punch-card machines that threw the 2000 presidential election into 37 days of chaos.

And like the Supreme Court justices three years ago, the California judges cited the same equal protection guarantees of the Constitution that were used to conclude the presidential election.

"They're hoisting the Supreme Court on its own petard," said Vikram Amar, a professor at Hastings College of the Law in San Francisco.

In ruling on the case, filed by a coalition of minority groups represented by the American Civil Liberties Union, the judges from the Court of Appeals for the Ninth Circuit said the case involved "almost precisely the same issue" as was confronted in Bush v. Gore.

That may be an overstatement, and it illustrates a continual tension between the courts. The appeals court's decision last year striking the words "under God" from the Pledge of Allegiance, for instance, also used complex and ambiguous Supreme Court doctrine to reach its result.

"A lot of the Ninth Circuit's most controversial decisions don't flout the Supreme Court so much as take the Supreme Court's own words and reasoning and run with them in a direction the Supreme Court might not agree with," Professor Amar said.

In some ways the problems the appeals court identified in California voting may present a more striking claim of the denial of equal protection, and in other ways the claim might be seen as weaker.

It is hard to see, though, how the cases concerned almost precisely the same issue.

In Florida, disputed ballots were counted by hand, by those using inevitably subjective judgments, under systems that varied from county to county; in California, the plaintiffs claimed that mechanical processes, not different standards and human decision making, would result in an unacceptable number of errors in some counties that might disfavor minorities and Democrats.

The Ninth Circuit held that the punch-card voting system used in six California counties representing 44 percent of the statewide electorate Los Angeles, Santa Clara, San Diego, Sacramento, Mendocino and Solano could be expected to produce a large and disproportionate number of uncountable votes. People in those counties would face errors, the court said, two and a half times more often than voters elsewhere in the state.

"The inherent defects in the system are such that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all," the three judges wrote, in an unsigned opinion.

The affected counties, moreover, have significantly higher minority populations than the balance of the state, the court noted.

Some lawyers involved in the case detected a delicious tension, while others saw an ideologically biased court run amok.

"If Bush v. Gore has precedential value," said Richard L. Hasen, an expert in election law at Loyola Law School in Los Angeles, who filed a brief supporting the plaintiffs in the appeals court, "and there have been considerable disputes about that, it should apply in this case."

Mr. Hasen added: "The holding of Bush v. Gore is that you cannot in an arbitrary manner value one person's vote above another's. This is an easy case under that rule."

A lawyer for the proponents of the recall said the case was about politics, not law.

"This is obviously an exceedingly liberal panel of an exceedingly liberal court," said Charles P. Diamond, a lawyer for some of the proponents. "Notions of absolute equality tend to resonate with such courts."

The judges who issued yesterday's decision were Sidney R. Thomas and Richard A. Paez, both appointed by President Bill Clinton, and Harry Pregerson, who was appointed by President Jimmy Carter.

"The panel is to the left of the Ninth's Circuit's center, to be sure," Professor Amar said.

Mr. Diamond said the panel's decision nonetheless surprised him.

"I thought that this was a court that was looking for a way to enjoin this election, but I was still confident that they would follow the law and the Constitution," he added. "I was disappointed."

The appeals court ordered that the election be deferred until more reliable voting machines are in place. As a consequence of an earlier lawsuit unrelated to the recall, the six counties will have moved to different voting systems in time for statewide primary elections on March 2, 2004.

The appeals court stayed its decision for seven days to allow the losing side to appeal. The proponents of the recall, who had intervened in the suit on the side of the defendant, Kevin Shelley, California's secretary of state, said they would go directly to the Supreme Court.

"We will file within 48 hours," Mr. Diamond said. He said he had urged California officials to do the same.

The filing will include a request for a stay directed to Justice Sandra Day O'Connor, the justice responsible for the Ninth Circuit.

"One thing we know about Justice O'Connor, who is reputed to be one of the two authors of Bush v. Gore," said Professor Hasen, "is that she is not all that predictable in the election law area."

The surmise that Justice O'Connor is a co-author of the decision is based on the fact that only she and Justice Anthony M. Kennedy were in the majority who did not file concurring opinions.

Though Justice O'Connor has the authority to grant a stay while the full court considers whether to hear the case, she would most likely refer the question to the full court, particularly given how little time is available if the election is to proceed in October. Five votes are needed to grant a stay but only four votes are needed to agree to hear the case.

Legal experts said the court might well take the case to clarify the lasting power, or not, of Bush v. Gore; to show that it is equally sympathetic to challenges brought by parties aligned with Democrats; or to slap down the Ninth Circuit for its perceived impudence.

On the other hand, the Supreme Court has ignored its decision in Bush v. Gore, not citing it in any case since then. That may mean the justices have no particular desire to plunge back into that thicket anytime soon.

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