Judicial Overstretch in the California Recall

Right now, I’d be just as happy, in terms of expected outcomes, if the California recall election were cancelled. Bustamante’s campaign so far has left me dubious that he’d be an improvement on Davis; given the risk of winding up with Schwarzenegger, I’d rather stick with what we’ve got.

There’s another reason to stick with Davis from a Democrat’s viewpoint: he’s termed out, so if he survives we automatically get fresh blood in 2006. If Cruz wins, he probably can’t be denied the nomination in 2006, when he could well be our weakest candidate. Moreover, it would be good for everyone concerned if the first Latino governor of a big state were conspicuous for good rather than bad performance, and Bustamante is not to governing as Jackie Robinson was to baserunning.

But that’s not the same as being happy about the Ninth Circuit’s decision to postpone the election to March, when the Presidential primary will bring out hordes of Democratic voters and thus give Davis a much better chance to survive.

Like it or not, the California constitution gives the people of California a process by which they can boot an underperforming official, including the Governor. That procedure has been lawfully invoked. For a Federal court to, in effect, repeal a provision of the state Constitution by requiring Californians to suffer under Gray Davis for another six months, and to push the election to a date more favorable to his survival, ought to require a pretty overwhelming reason, and I can’t see such a reason in this instance.

The plaintiffs had two complaints about the voting procedures, one valid and one half-valid. The valid complaint was that the counties, in order to save money, had very substantially reduced the number of polling places, which is likely to confuse everyone and inconvenience especially those who rely on public transportation to get to the polls. (My new polling place is three miles, and a thousand vertical feet, from where I live.) But the right remedy, surely, would be for the court to order the state — given that the state is the responsible entity under the Voting Rights Act — to pay the counties to run a full election on the appointed day.

The half-valid complaint is about punch-card voting. There the remedy is even simpler: require, in addition to signs and instructions to tell voters to make sure their hole-punching is complete, a manual scan of any ballot not counted by machine to see if there is a distinct mark at the place associated with one of the candidates and, if there is exactly one such mark, counting that ballot for that candidate. Punch-card voting was never intended to be a contest in manual dexterity; the fact that machines can easily count 97% of the votes is no reason not to have human beings count the other 3%.

No doubt, there will be a trivial number of cases in which a voter, coming to the polls in a gubernatorial election (1) doesn’t want to vote for governor and (2) accidentally makes a mark at precisely one spot on a punch-card, and miraculously does so at a point corresponding to a vote for one of the two leading candidates. In those cases, and in the (I think, purely imaginary) cases in which someone starts to vote for a candidate, makes a mark on the punch-card short of a complete punch, changes his mind, and doesn’t then ask for a replacement ballot, an occasional careless voter will wind up having his vote counted for someone he didn’t intend to vote for. Tough luck.

Compared to failing to count an intentional vote, counting a vote not intended (and presumably therefore randomly distributed) does no noticeable harm. It was only in the heated atmosphere of the successful attempt to steal Florida’s electoral votes for the losing candidate that anyone imagined that the number of “pregnant” and “dimpled” chads not representing intentions to vote was of greater than epsilon measure, or that there was any harm done to the voter by counting each ballot for the candidate the voter appeared to intend to vote for.

Since, then, there were remedies short of postponing the election that would have satisfied all of the legitimate complaints of the plaintiffs, it seems wrong for the Ninth Circuit panel to have resorted to the unnecessarily drastic remedy of nullifying the state constitution. (As a non-lawyer, I don’t know whether the remedies suggested above are in fact within the powers of the federal courts in Voting Rights Act cases; if not, perhaps they should be.)

If the state of California has failed to live up to its responsibilities under the Voting Rights Act and the consent decree issued pursuant to it, the ultimate responsibility rests with the Governor. A ruling that, as a result of that failure, the Governor gets a guarantee of an additional six months in office may be good law, but if so Mr. Bumble can claim another instance for his maxim.

If the Ninth Circuit either denies a rehearing en banc or grants a rehearing and affirms its panel, presumably the proponents of the recall will appeal to the Supreme Court. As Wayne Eastman points out [*], a decision by that court to allow the recall election to proceed in the face of unequal opportunities to vote could be reconciled with the result in Bush v. Gore, but it would take some doing. If the Ninth Circuit manages to create some uncomfortable moments for the Chief Injustice and his four Associate Injustices, yesterday’s ruling won’t be a total loss.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com