The California Recall Punch Card Litigation: Why Bush V. Gore Does Not Suck

Abstract

The unprecedented California recall election of 2003 also spawned an unprecedented amount of litigation over the rules for the recall itself. Much of that litigation was patently frivolous, an attempt to throw up as much as possible against the recall to see what would stick in the interest of delaying or scuttling the recall. The recall litigation became part of what I have termed election law as political strategy.

But some of the litigation had merit. This paper focuses on one of the meritorious cases, litigation over the use of punch card ballots in Los Angeles and a handful of other California counties in the recall election. Plaintiffs' argument was that the selective use of punch card voting technology, with its extraordinarily high error rates, violated the equal protection rights of voters under the United States Supreme Court's decision in Bush v. Gore (2000). Bush v. Gore was the case that ended the recount of votes in Florida following the November 2000 presidential election.

A federal district court judge rejected the argument, but a three-judge panel of the Ninth Circuit accepted it, ordering a delay in the election until the counties could replace their punch card machines with other technology. A larger (en banc) panel of the Ninth Circuit quickly reversed the panel ruling, and the recall election took place as scheduled.

In a recent California Law Review article, Professor Vikram Amar was very critical of the original Ninth Circuit panel's decision to delay the recall, and even more critical of the Supreme Court's decision in Bush v. Gore. Indeed, in a recent roundup of the top ten lessons of the recall, Amar lists "Bush v. Gore sucks" as his number one lesson about the recall: the Supreme Court senselessly chose not to be explicit about things in Bush v. Gore, thereby allowing courts such as the Ninth Circuit panel to dubiously interpret the decision as a reason to delay the recall election.

In this paper, I take issue with Amar. Far from sucking, the Bush v. Gore opinion had the salutary purpose of focusing the attention of the public, elections officials, and - as in the case of the recall - the courts, on some important yet neglected issues of the nuts-and-bolts of democracy. The debate the case has spawned, and the reforms it has started in motion, have thus far had a salutary effect on the Nation's democracy, even if that may not have been the intent of the Supreme Court Justices who decided the case. In Part I, I describe the California punch card litigation in the context of the Bush v. Gore precedent. In Part II, I defend the original three-judge panel's opinion as a permissible application of Bush v. Gore, and I explore more generally how Bush v. Gore has affected the debate over the nuts and bolts of our democratic process.