Posted on: Thursday, September 25, 2003

EDITORIAL
California recall ruling risks flawed result

California's on-again, off-again recall election is on again, after an 11-member panel of federal appeals judges decided this week that the right of Californians to resume their headlong plunge into chaos trumps their right to have their votes count equally.

It's a decision that could come back to haunt them.

Three judges from the same court, the San Francisco-based 9th Circuit Court of Appeals, had earlier ordered the recall election postponed, from Oct. 7 until next March. The larger panel overruled them this week, and the election will now go forward as originally scheduled on Oct. 7.

If voters decide to recall Gov. Gray Davis on that day, they'll also elect one of 135 candidates to succeed him.

The three judges had found that an October election couldn't be fair, because 44 percent of California voters would have to use punch-card machines — the same technology that made "hanging chads" a household word in Florida in the 2000 election. Because new machines would be in place by March, they reasoned that a fair election later would be better than a flawed one now.

In overruling them, the larger panel balanced the unfairness of flawed voting machines against the state constitution's requirement that a recall election be held within 80 days of signature validation. The panel also recognized that as many as 40,000 valid votes might be thrown out in an October election, but they balanced that against the 600,000 absentee ballots already cast.

But the three judges were right that the October election has the potential for repeating the Florida debacle. With the latest polls showing voters to be almost evenly divided on the recall and between the top two candidates to succeed Davis, there is a high probability that the margin of victory will be smaller than the number of flawed ballots.

That likely would throw the election right back to the courts. It might end up making the U.S. Supreme Court demonstrate that its theory in Bush v. Gore — that Florida's recount procedures violated equal protection because they did not "satisfy the minimum requirement for non-arbitrary treatment of voters" — could work in favor of a Democratic candidate as easily as a Republican.

And it would ensure that California's bizarre election season could endure well past Oct. 7.