JB

Today the Ninth Circuit Court of Appeals issued an injunction staying the California recall election on the grounds that about 44 percent of the California population will be using outmoded punch card technology to cast their ballots, leading to the likelihood that many of their votes will not be counted. (More on the court's decision here). The court argued that this violated the Equal Protection Clause of the Fourteenth Amendment, citing prominently as justification the Supreme Court's decision in Bush v. Gore.

For those of us who were deeply skeptical of the politics if not the reasoning of the Bush v. Gore opinion, the 9th Circuit's use of it to delay-- at least for the moment-- a Republican plan to replace California's elected Democratic governor with a Republican candidate is deeply amusing. Nevertheless, there are several important differences that are worth noting.

First, the objectionable portion of Bush v. Gore was not its equal protection holding, but rather the remedy, which was inconsistent with the equal protection theory. Indeed, the only thing odd about the equal protection holding was that it was a liberal innovation supported by the Court's most conservative members, who usually fight shy of such social engineering, at least where election of Republican Presidential candidates is not at stake.

Second, the Bush v. Gore decision, by its own terms, limited the scope of its equal protection holding to the precise facts of the case, that is, the rules governing hand recounts by the judiciary. Although the case made noises about the fact that punch card ballots were more likely to be spoiled than other forms of balloting, the court stopped well short of holding that different voting technologies violated the equal protection clause. For had it so held, it would have opened the door to a much more extensive complaint about the Florida election. Nevertheless, the dissenting justices noted that the logic of Bush v. Gore might well apply to technological differences as well.

One possible distinction is that technological differences in ballot spoilage do not necessarily mean that there has been any sort of deliberate intent to discriminate against voters or deny them the right to have their ballots counted. The Bush v. Gore holding could be read narrowly to hold that judicial hand recounts required a single standard in order to avoid invidious discrimination against voters. That is to say, the Bush v. Gore opinion may be about the Court's distrust of the Florida judiciary's bona fides in conducting the recount. That would pose a different problem than the problem of different voting technologies used in different parts of the state.

Nevertheless, the Court's precedents in the voting area do not always require bad intent in order to find a violation of voting rights under the Fourteenth Amendment. The principle of one person, one vote should, in theory, apply whether the dilution of the voter's rights was deliberate or negligent. Hence the Ninth Circuit's argument, even though it does not follow directly from Bush v. Gore, nevertheless makes some sense in the light of the Court's other voting rights precedents.

Nevertheless, there is a delicious irony in watching Bush v. Gore used in this way. The Supreme Court apparently believed that it could resolve the 2000 election by issuing an opinon that would never be used or cited by any court again. It hoped to expand equal protection doctrine for this one case but then hold that the decision was limited to the precise facts of Bush v. Gore. The Ninth Circuit has called its bluff, suggesting, in effect, that if the Supreme Court wants us to believe that Bush v. Gore was a legal opinon, then it should be treated as law, with real precedental consequences, rather than as a one-time imposition of will by five Justices who wanted to install the Republican candidate, George W. Bush, as President.

Long live the rule of law!