Government
Sep. 23, 2003
Recall Delay by Court Prevents Violation of Equal Protection Clause
Forum Column - By Erwin Chemerinsky - In ordering a delay of the recall election in Southwest Voter Registration Education Project v. Shelley, the 9th U.S. Circuit Court of Appeals based its decision on the fundamental constitutional principle that "[t]he right to vote freely for the candidate of one's choice is of the essence in a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims , 377 U.S. 533 (1964).
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
In ordering a delay of the recall election in Southwest Voter Registration Education Project v. Shelley, the 9th U.S. Circuit Court of Appeals based its decision on the fundamental constitutional principle that "[t]he right to vote freely for the candidate of one's choice is of the essence in a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533 (1964).
The court, in a carefully reasoned 64-page opinion, found that using punch-card voting machines in six counties (comprising 44 percent of the state), while using superior technology throughout the rest of the state, violates the Equal-Protection Clause because punch-card machines fail to count 21/2 times more votes than other voting machines.
The result, as the court noted, is that 40,000 ballots will not be counted which otherwise would be tallied, probably more than the margin of victory in this election. In Gray v. Sanders, 372 U.S. 368 (1963), the court stated: "The Court has consistently recognized that all qualified voters have a constitutionally protected right to cast their ballots and have them counted ... Every voter's vote is entitled to be counted once. It must be correctly counted and reported."
Going forward with the recall election on October 7 would violate this basic constitutional command.
The correctness of the 9th Circuit's Equal Protection analysis is illustrated by an example. If a county that counted ballots by hand announced that it could not afford enough employees to count all the ballots and that 40,000 votes would not be tallied, there is no doubt that any court in the country would declare that unconstitutional as violating equal protection and the fundamental right to vote. That is what the 9th Circuit found would occur if the punch-card voting machines were used in six counties.
Shelley thus is based on decades of equal-protection decisions by the Supreme Court, including most recently Bush v. Gore, 531 U.S. 98 (2000). In that dramatic decision, the Supreme Court stopped the Florida recount in the presidential election because of the chance that similar ballots would be treated differently.
In the recall election, it is certain that similar voters in California will have a different likelihood that their ballots will be counted. Bush stands for the proposition that it violates equal protection to treat similar voters differently in an election solely because of geography. That is what will occur if the election goes forward with six counties using punch-card machines while the rest of the state uses far-superior voting machines.
The 2000 presidential election exposed the inadequacies of punch-card voting machines. After the 2000 presidential election, a lawsuit challenged the use of punch-card machines in this state. The suit ended in a settlement in which the secretary of state decertified punch-card machines as "inadequate" and prohibited their use after March 1, 2004.
The machines were allowed to be used in November 2002 because there was no way to replace them by then and it would have created a constitutional crisis to delay that election. California would have had no representation in the House of Representatives, and every statewide office would have gone unfilled.
But the understanding and expectation was that there would be no statewide elections after November 2002 using punch-card machines. No one could have imagined a statewide recall election before March 2004 because none ever had occurred in our state's history.
Some have argued that the 9th Circuit overstepped its authority in delaying the recall election. Yet, courts have delayed elections before when necessary to ensure compliance with the Voting Rights Act and Equal Protection: Lopez v. Monterey County, 519 U.S. 9 (1996); Clark v. Romer, 500 U.S. 646 (1991); Haith v. Martin, 618 F.Supp. 410 (E.D.N.C. 1985). Delaying the recall election poses fewer problems than delaying a regularly scheduled election because it leaves no office unfilled. Indeed, Bush is a powerful reminder that it is the judicial role to ensure that elections comply with the Constitution.
Delaying an election, of course, is an extraordinary remedy. But the alternative was to hold an election in which 40,000 voters would not have had their ballots counted simply because they lived in counties that had not yet replaced the punch-card voting machines.
The 9th Circuit was right in saying that it was necessary to delay the recall election until the punch-card machines are replaced, rather than proceed with an election that would violate equal protection.
Erwin Chemerinsky, Sydney M. Irmas professor of public-interest law, legal ethics and political science at the University of Southern California, is co-counsel for the plaintiffs in Southwest Voter Registration Education Project v. Shelley.
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