Recall Recalls 2000

The tangled web that a narrow Supreme Court majority wove to shut down the Florida recount of presidential ballots in December 2000 made it possible for Republican George W. Bush to secure the presidency. But that precedent could make it impossible for California Republicans to game the system with a hastily scheduled recall of Democratic Governor Gray Davis. Though the High Court framed its decision in the 2000 Bush v. Gore case as a one-of-a-kind ruling, the majority opinion broke new legal ground in determining that the Constitution's equal protection clause, which protects citizens from disparate treatment by state officials, can be applied to the methods states use to tally votes. It was on the basis of that interpretation that a three-judge panel of the Court of Appeals for the Ninth Circuit delayed California's recall election.

California counties currently have different voting systems, and some of them still employ the flawed punch-card machines that denied the franchise to so many Floridians. The appeals court ruled that it would be unacceptable to allow the election to be held before key counties--several with large minority populations--carry out a planned replacement of the those machines, thus reducing the risk that ballots cast in those counties would be discarded at higher rates than in counties with better systems.

The panel's ruling (which as we went to press faced a possible review by the full Ninth Circuit and potentially a Supreme Court review) points again to the desperate need for Congress to set ironclad standards for assuring that every vote counts and that every vote is counted. Until that happens, litigation will continue, voters will continue to be treated differently based on where they live, and the promise of American democracy will remain unfulfilled.

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