A day after three 9th Circuit justices put the kibosh on the October 7 election, the same federal appeals court gave California's secretary of state and other "interested parties" (translation: the recall committees) until 2:00 p.m. Wednesday to file arguments explaining whether or not they want an 11-judge panel to hear an appeal. At least one recall committee--Rep. Darrell Issa's Rescue California--has an appeal ready to go to the U.S. Supreme Court. But first it wants to see how the 9th Circuit acts.
Meanwhile, on the recall trail, it was business as usual. Republicans Arnold Schwarzenegger and Tom McClintock met separately with ex-candidate Peter Ueberroth, fishing for an endorsement (Arnold also held an "immigrants only" town hall meeting in Los Angeles yesterday afternoon). Cruz Bustamante was more successful on the endorsement front, earning nods from the Sierra Club, Vote the Coast, and the California League of Conservation Voters (officially, those were "no on recall, yes on Bustamante" endorsements).
As for Gray Davis, he stumped in L.A. with Florida senator Bob Graham and the Reverend Jesse Jackson. Tomorrow, it's Massachusetts senator John Kerry's turn to play sidekick. It's already been a rough week for Kerry. First his communications director quit his presidential campaign, now he comes to California to be recall's "Hey Now" Hank Kingsley.
Meanwhile, other candidates were pondering a return to what passes as their normal existence. Porn star Mary Carey had planned to run late-night TV ads in early October. If the 9th Circuit's decision holds, that won't happen. But relax, the candidate won't stay dark for long. Her contingency plan is to finish filming "Mary Carey Rules No. 3" (Carey's contract with Kick Ass Pictures stipulates six such epics a year). "We'd definitely have to go back to work," Carey campaign manager/film producer Mark Culkis told reporters. "But Mary is definitely in this until the end. There are a lot of her issues that we still want to get out there."
THE OCTOBER 7 ELECTION was put on hold because the justices bought a Berkeley political scientist's argument that as many as 40,000 votes in 6 California counties would go uncounted if existing punch-card voting systems were used. But because the plaintiffs sued the secretary of state instead of the six counties in question, the 9th Circuit never heard from local registrars--the ones who actually run the elections.
Then again, the justices and the ACLU would not have been pleased by what the registrars have to say. "There has never been an issue of having a poor election process due to the punch-card system," Jesse Durazo, Santa Clara County registrar of voters, told the press. Added Los Angeles County registrar/recorder Conny McCormack: "The secretary of state doesn't conduct elections. There's a huge disconnect between the people conducting the elections and the court ruling."
Speaking of disconnects, here's further evidence of how the 9th Circuit's opinion doesn't hold up in recall's court of reality:
First, consider the effect the five-month delay has on absentee voting. California election officials have mailed up to 2.2 million absentee ballots to voters statewide. Voters began returning those ballots two Mondays ago; the state estimates that more than 300,000 absentee votes already have been cast. What happens if recall is postponed until the first Tuesday in March? California election bureaucrats have a word for it, "pulping"--as in, the ballots are shredded and absentee voters are forced to take a mulligan (as for the new absentee ballot, there's a question as to whether recall dropouts like Ueberroth and Bill Simon would be purged). Somewhere, the late Mayor Daley is smiling. In recall, thanks to the 9th Circuit, some Californians would get to vote early, and vote often.
Second, election officials now worry that a revamped March ballot literally won't compute. Next spring, Californians already have their choice of a crowded presidential slate, U.S. Senate and House races; state legislative seats, ballot initiatives and referenda, and an array of local contests, including country boards of supervisors and city and school boards. For a behemoth like Los Angeles County, it spells a potential meltdown for its new InkaVote optical scanning system. That's because the new-and-improved process, in which voters mark ballots with special pens, can handle 12 pages of questions and candidates. The 2000 presidential primary took up 10 pages; recall could tack on another 8. This might force the county to have voters cast ballots on two InkaVote machines--one for recall, the other for the primary.
Yes, that sounds complicated--and remember, part of the ACLU's rationale before the 9th Circuit was that some California voters are too confused to handle the complexities of a punch-card ballot. So what happens when elderly voters who aren't tech-savvy or immigrant voters with limited English proficiency are asked to follow a more complicated set of instructions? Ironically, their votes might not materialize at all, or perhaps not as they intended. Then again, California might never know it, because in a recount, there will be no paper trail to verify the results produced by touchscreen computer voting.
But why let any of this interfere with the 9th Circuit's pursuit of free and fair elections?
Bill Whalen is a research fellow at the Hoover Institution, where he follows California and national politics.