When to Vote

GWEN IFILL:

The California recall election landed before 11 members of the Ninth U.S. Circuit Court of appeals today, after a smaller three-judge panel ruled last week that a hasty October 7th vote might disenfranchise voters in six counties. In an unusual, televised hearing, the ACLU, which asked for the delay, and the state, which wants to forge ahead with the election, laid out their arguments. Spencer Michels reports.

SPOKESMAN:

Give your attention.

SPENCER MICHELS:

Today's hearing had echoes of the controversial 2000 presidential election in Florida, which was decided by a politically split Supreme Court. In California, eight of the 11 justices hearing the recall case were appointed by democratic presidents, three by Republicans. The three judges on the panel that last week delayed the election were all democrats.

At issue:

Whether the use of discredited punch card ballots in six California counties– and not in others– would disenfranchise minority voters. That was a central argument of the American Civil Liberties Union, which sued to delay the election until more reliable machines were available next March. Attorney Laurence Tribe argued the case today for the ACLU, answering questions posed by Justice Alex Kozinski.

ALEX KOZINSKI:

The secretary of state, said don't look at the error rate, doesn't matter because the state has made a filing, and there simply is no filing of an unacceptable error rate. Is from there, or did I miss it?

LAURENCE TRIBE:

No, there is no finding of any kind here.

ALEX KOZINSKI:

Why isn't that the case?

LAURENCE TRIBE:

The reason it isn't the end of the case is we're not counting sheep. It's because we're not counting sheep, we're counting votes, and it matters that people do or don't have confidence, and it's not as though there is no evidence.

SPENCER MICHELS:

The state argued that even though the punch cards were admittedly obsolete, the recall law required that once nearly a million signatures calling were gathered and certified, the election had to be held within sixty to eighty days. Furthermore, 375,000 absentee ballots have already been cast.

DOUGLAS WOODS:

It is in the public interest to proceed with a scheduled election that is imminent. That was a compelling interest 30 days ago, it is all the more compelling today.

SPENCER MICHELS:

Supporting the argument that the election should be held on October 7, attorney Charles Diamond, representing the recall supporters, answered Kozinski's question about whether the equal protection guarantees of the Constitution were in jeopardy from faulty voting machines.

ALEX KOZINSKI:

I hear that you agree implicitly that there comes a point that if the machinery is defective enough in counting votes that even your client would agree that there is an equal protection violation. Is that not true?

CHARLES DIAMOND, Recall Supporters’ Lawyer:

If local election officials are working as diligently as they possible can to address that problem and have a timetable to replace those machines, I say you don't stop an election, you don't prevent everybody from voting because some of the people who do vote may have their votes counted erroneously.

SPENCER MICHELS:

As the hearing ended, attorney Mark Rosenbaum of the ACLU tried to address the question of a possible violation of the voting rights law, but he tripped up on his own words.

MARK ROSENBAUM:

Dr. Grady did was he took California precincts and he took zero percent minority precincts and he took 100 percent minority precincts and asked was there any difference here. What he found in terms of causation, what he found was that there was a three times disparity. Then he looked and this is at figure 3, then he looked at those districts that had changed, changed from punch card to other machines, and he found, and this is at pages 165 and 167 in the record, that the disparity virtually disappeared, that it completely examined. That is, Your Honor, the strongest case that has ever been in this circus — circuit. ( Laughter)

SPENCER MICHELS:

The court is expected to make a decision quickly.

GWEN IFILL:

Here to dig a little deeper into the whys and wherefores of the federal court appeal are two legal experts who follow the courts in California and nationwide: Pam Karlan of Stanford University Law School, and Doug Kmiec of Pepperdine University Law School. Professor Kmiec, let start talking about what happened today. What was the argument, the most salient argument you heard today in favor of keeping the election date, October 7?

DOUG KMIEC:

I think the most profound argument was that Bush versus Gore has no application to this case. One of the judges early on said we don't have a Florida problem here in California because we have a uniform standard for recounting votes, and the issue in Bush versus Gore was the fact that they didn't have a uniform standard at the time for re-counseling votes.

And Bush versus Gore all of the justices in that case made it plain that they weren't dictating to the states that they had to have new voting equipment and that if they chose to have various types of equipment, the minor variations that would result in terms of their effectiveness was not a violation of the equal protection clause. So I think very early on it was established in this hearing this afternoon that there is no federal precedent that demands that this election be stopped.

GWEN IFILL:

Professor Karlan, what was the most salient argument you heard that this election should be put off until March?

PAM KARLAN:

I think the most salient argument was the argument about the Voting Right Acts and the fact that minority voters have a much greater chance of having their ballots not counted in this election than do white Anglo voters. So I don't think it's mostly about Bush against Gore, I think even if Bush against Gore had never been decided, this case would be in a quite similar position to where it is today.

GWEN IFILL:

What about the argument that was made about the fact that the California constitution for way this law was written, which outlawed these punch card voting machines in California, say that they should not be allowed, that they should be changed in time for the next election, but the next election is like next week.

PAM KARLAN:

Well, I think what happened is there was a settlement of an earlier lawsuit, and as part of that settlement the state agreed to abandon these machines, which everyone agreements don't do as good a job as more modern technology. The question is when you have what turns out to be almost a surprise election, which what is the October special election is you do about that election.

And I think one of the things that was really quite striking in the oral argument today was the number of judges who asked essentially whether they could split the baby, which is go forward with a recall election in October but put off until March decision on two ballot propositions about state spending and about the so-called racial privacy initiative, which would bar the state from using or collecting data about race. That they might think there were somewhat different arguments about when those elections should occur.

GWEN IFILL:

Doug Kmiec what do you think about this decision that Karlan brought up, do you think that was a significant part of the argument, this particular collection of judges would take into account?

DOUG KMIEC:

I think the ACLU and Professor Tribe tried to make it a significant part of the argument. It didn't seem to me to be resonating with the court. And the court below, in the district court there was an express finding that the voting rights act had not been violated, and that there was no basis to preliminarily en join the election on the likelihood of success under the Voting Rights Act. It's interesting that the three judge panel that's been in the news and that insisted that the election be delayed didn't rely on the Voting Rights Act hardly at all. So for the ACLU to place all its emphasis there today, seem tolls me it's just trying to make a higher profile larger headline case outs of this.

To prove a violation of the Voting Right Act, have you to show not only an impact, but that that disparate impact is on the account of race. There's no showing in this case that the voting machines in this state have been distributed in a racial way. The fact of the matter is, is that these punch card machines have been used for four decades, they're reasonably reliable, both majority and minority voters are going to be using them. And to the extent that there is a disparate impact because the older machines are in the urban areas, it's not an impact that violate the Voting Rights Act.

GWEN IFILL:

In fact, Pam Karlan, we heard I think Judge Kozinski say at what point does the state get to say, well, we're close enough. How would you interpret that statement?

PAM KARLAN:

Well, one of the things about the oral argument that was extremely impressive to me is how well prepared all of the judges were and how much they probed the weaknesses of both sides arguments. I think the point that Judge Kozinski was making there in his colloquy with Charles Diamond was look if the states come in and said we're going to use a system in which 50 percent of the voters aren't going to be counted, everybody would concede that system violate the Constitution. If there's a 50 percent likelihood that votes won't get counted in minority neighborhoods but a 90 percent likelihood that they will be counted in white Anglo neighborhoods, that violate the Voting Rights Act and you don't have to show a discriminatory purpose, you just have to show there's a difference.

Now, at the other end, of course, if you had a .1 percent chance of having your votes thrown out under one system and a .2 percent chance of having your votes thrown out under another system, that would be close enough for government work. And where to draw that line is an agonizingly difficult question but one that I think the plaintiffs will argue here has to some extent already been answered by California's decision to decertify punch card machines but to continue using optical scan machines or direct recording instruments, so-called touch screen machines.

GWEN IFILL:

Do we know, Doug Kmiec, that those touch screen machines, that they would actually improve, are they the foolproof solution here?

DOUG KMIEC:

Well, none of the registered voters in California and Los Angeles or Sacramento seem to think so. They had amicus filings this case to say that the new machines that they're going to in March 2004 have in been tested in a real election, and they may indeed be subject to some of the same alleged errors that the punch card machines use.

One of the facts that's, that I think troubled the court today is that the record of improvement between the punch card machine and the optical scan mechanisms that the state is thinking of, was not particularly solid and demonstrating that in fact the new machines are better. When you have that kind of doubt, it's extraordinary for a federal court to intervene and stop a state election that is in mid stream, because of course once that stops it's not the same election once it's been delayed.

GWEN IFILL:

Tell me about these eleven judges we saw today. It was interesting to have cameras actually inside a federal appeals court and listen to them engage. They weren't sitting back at all, they were very much engaging the people who came before them. Who are some of these judges?

DOUG KMIEC:

This was a hot panel. They were quite engaged, as you said. They were extremely spell prepared. They came right out of the box with difficult questions, and I think Professor Karlan is right for both sides, they did not show favoritism the questions they were asking. And these are judges that were appointed, as your lead in piece said eight of them by Democratic presidents, but they are also known as judges who are very thorough, very careful, and I think the fact that they were being broadcast to the nation made them especially so.

GWEN IFILL:

Pam Karlan what was your assessment of the judges and their engagement today?

PAM KARLAN:

I thought the judges did just a terrific job, as I said, of pointing out the weaknesses in both sides cases. One of the things that I found myself thinking as I watched, is as each advocate got up, I thought each of them had good answers to some of the questions and no answers o others of the questions. And I think the court focused in on two big issues, one is the question of how to review a district court judge because on preliminary injunctions of course you never have a completely full record. And there tends to be a lot of deference to what the trial court judge did.

So in this case that puts the plaintiffs in an uphill battle because the trial judge found against them. The other question was a question of what the remedy should be if there is in fact a problem. Even if you were to conclude that either the Voting Rights Act was violated by where these machines are being used or the equal protect clause is violated by their being used at all, you still face the difficult question what was to do about that, because there are interests on both sides of the case here. And so I was very impressed with how much all of the judges probed those questions.

GWEN IFILL:

Going into this, Pam Karlan, all the legal scholars of the world were saying they fully expected the fact that this court took this case to mean that they were probably going to let the election go head, they would intervene and overturn a three-judge panel that said the election should be stopped. What do we know about the history of this en banque panel, even though it's different members every time — what do we know about their history of reversing the lower courts?

PAM KARLAN:

Well, a majority of the times that the 9th Circuit Court of appeals has taken a case en banque, that is her it in an eleven member panel rather than a three-member panel, they've reached a different decision tonight three-member panel has. As you said, it would be less likely to take the case to say well we think the three-judge man el was right, than it would be for them to reach a different conclusion.

GWEN IFILL:

And Professor Kmiec, what's your take on that?

DOUG KMIEC:

Well, I think that's right. The studies tend to show they take these cases because they want to correct errors of law, they want to correct miss applications of law to fact. I think they took this case especially because there were a million and a and a half voters in California who petitioned for a recall. There's a state constitutional provision that says you have that recall very quickly, within a sixty- to eighty- day period of time of certification. If the lower court panel got the law wrong, it was going to do serious damage to this state in terms of a delay, and these judges were appreciative of that fact.

GWEN IFILL:

Do they usually act quickly?

DOUG KMIEC:

I think they will act quickly. I suspect we're going to see a ruling, if not by tomorrow, but no later than the end of this week.

GWEN IFILL:

Doug Kmiec and Pam Karlan, thank you very much for joining us.