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Washington-The California recall election is different things to different people: chaotic, righteous, ridiculous, so California. But is it Bush v. Gore? A three-judge panel of the 9th U.S. Circuit Court of Appeals says yes. It declared that the recall challenge “mirrors” the one that settled the 2000 presidential election. Using that case as precedent, it ordered a delay of the recall election until next spring. Southwest Voter Registration Educ. Project v. Shelley, No. 03-56498 (Sept. 15, 2003). Legal scholars, predictably, are as divided over the panel’s reliance on the Supreme Court’s ruling then as they were over the decision itself. Bush v. Gore, 531 U.S. 98 (2000). Many of them shy away from predicting what will happen if the Supreme Court is asked to jump in. Some are painfully aware of how wrong they were three years ago. The recall challenge is the first high-profile test of whether the equal protection principle applied to the Florida election is limited to manual recounts in presidential elections, as the Supreme Court majority said, or has wider application. The drama unfolding in the 9th Circuit raises a “profound jurisprudential question,” said Michael Dorf, vice dean of Columbia University Law School: whether lower courts ought to try to predict what higher courts will do or follow the law as they see it. “If what the Supreme Court was saying in Bush v. Gore was, ‘No one should ever rely on this as precedent because we are acting in an unprincipled way and we don’t want to be bound by it,’ then the 9th Circuit was right and had a duty to disregard that warning,” Dorf said. “I think the Supreme Court was saying, somewhat inartfully, ‘The context here is a recount.’ That puts us back to the first question: Is there a logical, legal distinction between the Bush v. Gore situation and the California recall?” Bush v. Gore arose after the Florida election. The one in California comes before the Oct. 7 recall vote. Bush v. Gore involved a presidential election whose outcome was important to the entire nation. California’s is a state election, directly important only to its own citizens. Bush v. Gore involved varying standards for a manual recount of ballots, standards that varied from county to county and within counties themselves. The recall case involves errors likely to occur in voting machines in six California counties with about 44% of the electorate. Factually, “the cases are so different I can hardly see any comparisons,” said election scholar Daniel Lowenstein of University of California at Los Angeles School of Law. “Some legal scholars believe the rules described in Bush v. Gore govern this case. I don’t agree with that.” The Bush court said it was not deciding “whether local entities, in the exercise of their expertise, may develop different systems for implementing elections,” said Lowenstein, quoting from the opinion. “What they did say was they were dealing with the ‘special instance of a statewide recount under the authority of a single judicial officer.’ “ The 9th Circuit, he said, faces the very question the Supreme Court said it was not deciding, “and the situation it said it was dealing with manifestly has no resemblance to the situation we have in California.” Some broad language in the Supreme Court’s opinion, he said, is the source of disagreement over how broadly it should be applied. For the 9th Circuit panel, the critical Supreme Court language included this: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Using error-prone equipment in some counties but not others would produce a denial of equal protection, the 9th Circuit panel found. There’s a logical distinction between the recount and recall cases, said Columbia’s Dorf. With recounts, “there is the possibility of not only different standards entering into the counting, but for subjective standards,” he said, meaning a greater danger to equal protection. “If you find that distinction persuasive, then I think the 9th Circuit erred in applying Bush v. Gore here,” he said. He went on to say that he does not find the distinction persuasive. “The argument the Supreme Court accepted was equal protection, he said. “If the gravamen of the [recall] complaint is equal protection, then allegations of different standards should be sufficient.” If the Supreme Court enters California, Dorf predicted, justices will find a distinction between recounts and the recall. “But I also think they would be wrong, given the logic that underlay their opinion in Bush v. Gore,” he said. No violation Douglas Kmiec of Pepperdine University School of Law falls on the other side. He pointed out that Justice David H. Souter, in his dissent, said that the equal protection clause doesn’t forbid a variety of voting mechanisms within a jurisdiction, even mechanisms of different quality. Attempts to use Bush v. Gore to attack voting machinery have not been very successful, Kmiec said. An Illinois case survived a motion to dismiss last year, he said, but the variations in those machines were greater than California’s. Some scholars didn’t come down firmly on either side. If Bush v. Gore is to be legitimate as a decision, it has to stand for a principle that’s applicable to circumstances besides the one election it decided, said Mark Rahdert of Temple University School of Law. That principle, he said, is close to what the 9th Circuit panel held. However, Rahdert said it’s not clear that the alleged voting-machine variations amount to an equal protection violation. It might be better, he said, to allow the election to go forward now and analyze the results later. Randall Bezanson of the University of Iowa College of Law said that although the recall case is not exactly Bush v. Gore, “The ghost of equality in the vote, and the standards by which votes are judged and counted, haunt this case.” The problem, he said, is that many states, including Iowa, have voting mechanisms that vary from place to place. “Either every election in Iowa is unconstitutional under this theory,” he said, “or you have to be very careful to take into account there are different habits, traditions, that give rise to different voting methods with different error rates, and within some tolerance range that’s acceptable,” he said. A 9th Circuit choice Bezanson said that in an en banc review, the 9th Circuit may choose to focus only on the delay and avoid analyzing the arguments on their merits. “Given the election is so close in time and there’s been so much reliance on that election date and the state statute requires that date, they could say federalism concerns and the interest of the state in enforcing its own election laws counsel against an injunction at this late stage,” he said. “It would be an efficient way out.” Coyle’s e-mail address is [email protected].

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