Lawrence Tribe has an interesting, if strained, defense of the 9th Circuit in today’s WSJ. The piece’s subtitle, “It’s wrong to hold an election if some voters will be disfranchised,” is demonstrably absurd but was almost certainly not written by Tribe, as that’s not really his point. Drawing the analogy with the 2000 election, Tribe says the GOP is being consistent in putting more emphasis on a “purely arbitrary, artificial deadline” than “the fundamental principle that nobody’s vote should count less than anybody else’s in a state-run election just because of where in the state the voter happens to live.” I would note that, in neither case, are the deadlines arbitrary but rather those set by law before anyone knew what impact they might have on the particular contest in question. He further accuses Republicans of
treat[ing] as trivial or as merely speculative the far clearer and greater disparities between the parts of California where votes will be counted with precision and those parts of California where they’ll be counted by an antiquated punch-card method that the secretary of state has already decertified as “archaic,” “obsolete, defective, or otherwise unacceptable.” The state itself has documented the defects in the punch-card voting machinery that is to be phased out by next March.
The evidence assembled by the state in support of its plan to eliminate punch cards by the next election–only to have the recall unexpectedly arise before then–shows that tens of thousands of votes will not be counted at all in the places still stuck with punch-card systems and that these denials will fall disproportionately on poor and minority counties.
I’d be interested in seeing this evidence since it’s unclear to me how “tens of thousands” of votes could be simultaneously countable for the purposes of the study and uncountable for the purposes of an election. I’d also point out, again, that these same facts obtained in November 2002 when Davis was elected.
If the state has decided to use some other voting method starting next March, that’s great. It’s not March yet. The California recall law is a hundred years old and sets forth a timetable for holding election. Ignoring the law in service of an unwritten higher principle–when doing so has the ability to change the outcome of the election far more than the potential errors in the voting process–seems unreasonable to me.
Daniel Drezner has more discussion on this issue, although not directly related to the Tribe piece.
