Primary Sources

Matthew Hoy
By Matthew Hoy on September 19, 2003

The Nutty Ninth Circuit has posted various documents on their Web site [Adobe Acrobat Reader required] related to the October 7 recall.

Two of the documents, which thankfully are not couched in legalese, are informative.

The first is from former Secretary of State Bill Jones, who was quoted in the three-judge panel's as having "banned" the use of punchcard ballot systems in "all future elections."

Well, it turns out that's not quite true:

These erroneous statements occur in the published opinion of the panel concerning my reasons, as then-Secretary of State, for decertifying pre-scored punchcard voting systems in 2001. The panel opinion begins with two incorrect factual statements contained in its lead topic sentence at page 1 of the panel opinion: that "the [punchcard] voting system is so flawed that the Secretary of State has officially deemed it 'unacceptable' and banned its use in all future elections."

This statement is incorrect in two ways: (1) as Secretary of State, I have never concluded, nor was it -- or is it -- my view, that pre-scored punchcard voting systems are flawed; and (2) I did not "ban the use of punchcard voting machines in all future elections" The incorrect implication of the first statement is that punchcard voting systems were and are defective, a view I never held and do not hold now. During my tenure as Secretary of State, dozens of elections involving national and local contests were successfully conducted using pre-scored punchcard voting systems. There was never a challenge in California to the result of any election because the election had been conducted using pre-scored punchcard voting systems.

The incorrect implication of the latter statement above is that punchcard voting systems would not be used in any elections between my decertification order and the date of its implementation. Moreover, the latter statement implies -- incorrectly -- that my action in 2002 somehow anticipated the recall and validates the panel's decision.

Facts? The Ninth Circuit don't need no stinkin' facts!

The second document is a letter from the Sacramento County registrar of voters. Outlining the wasted money and big-time mess a delay in the election would cause.

The Court ruling canceling the October 7, 2003 Statewide Special Election has already resulted in more voter confusion and antipathy than would ever potentially occur as a result of the continued use of the punch card voting system at issue.

If this election is delayed until March, 2004, it is possible that Sacramento County will have insufficient ballot capacity on our optical scan card to include all 135 candidates for the recall, plus all of the Federal, State and local contests that are scheduled for the March 2, 2004, election. The optical scan system that we plan to use does not allow for multiple cards, so we could potentially need to use a second voting system to accommodate the entire ballot. This would definitely cause voter confusion. We would be asking the voter not only to use a new system, but two new systems.

Voter confusion would also occur because the recall candidates are non-partisan running in a primary election. How would we explain to a Republican voter that he could vote for a Democrat in the recall contest but not for president?

And on the money issue:

Sacramento County estimated that this election would cost $1.5 million. At the present time, we have already expended approximately $1 million for the printing and mailing of ballots and Sample Official Ballots. This figure does not include staff time, overhead or indirect costs. The ballots and Sample Officials Ballots were prepared specifically for the October 7, 2003 Statewide Special Election and cannot be used or reused in another election. At least $1 million of Sacramento County’s taxpayer dollars will have been wasted if the October 7, 2003 Statewide Special Election is cancelled.

Harvard law professor Laurence Tribe, in an article in yesterday's Wall Street Journal, waxed eloquent that the Ninth Circuit had done the right thing. Tribe's argument is predictable, yet lame. If you check out the reader responses to Tribe's article, the combined effect is a thorough fisking.

However, there is one point in Tribe's article I'd like to single out for particular scorn.

People moaned and groaned about a hanging chad here and a dimpled chad there in Florida in the election of 2000 and succeeded in getting the federal judiciary to throw away thousands of ballots still uncounted as of an arbitrary date (Dec. 12, 2000).


The Ninth Circuit's critics aren't being wholly inconsistent with the game they played in the 2000 election: they're again hanging onto a purely arbitrary, artificial deadline (there it was midnight on Dec. 12; here it's the arbitrary Oct. 7 date) ...

Tribe is dismissive of these so-called "arbitrary" dates. The problem is, these "arbitrary" dates are the law. They are the rules of the political game. The outcry against the Ninth Circuit's decision to is akin to what might be heard if a NFL referee decided that the visiting team needed 15 yards for a first down and only got three downs. Both of those are "arbitrary" numbers.

Arbitrary is a synonym for "the law."

Funny that a law professor doesn't get that.


Why, one must ask, was the suit against Biden's student debt wipe “inevitable”?

Was it because the Biden admin is in flagrant violation of the law, and because *everyone* in America knows it?

Not in Waldman’s view, apparently. | @charlescwcooke

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