Despite having an aspirin-resistant, persistent, splitting headache for much of the day (hence the non-existent posting -- I'm feeling a little better now), I managed to watch the en banc hearing in the Ninth Circuit Court of Appeals on the California recall.

I'm not going to predict what the court's decision will be come Tuesday -- I don't have enough information to predict the outcome with any reasonable certainty. One bit of good news for the pro-recall side, however, might be found in an interview with Judge Harry Pregerson, one of the original three judges who first put the recall on hold.

"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview.

While listening to the arguments before the full court, I was struck by a couple of things:

First, on the basis of pure performance, the ACLU side definitely did a better job. Lawrence Tribe and Mark Rosenbaum argued their case much more passionately than Douglas Woods, California's deputy attorney general. Charles Diamond, who argued on behalf of Rescue California, the pro-recall group, did slightly better.

Second, the ACLU's argument, though when pressed they denied it, seemed to be that if there is the possibility that any vote might not be counted, then no voting should take place. They painted touchscreen and optical-scan ballots as a voting panacea -- ignoring the fact that they too have potential difficulties. The ACLU also equates the inaccuracy inherent in any voting system with the intentional refusal to count some (specifically minority) votes.

Voting is an important and serious responsibility -- and if all voters would treat it as such, then there would be no pregnant, dimpled or pimpled chads.

The answer is not to delay the election because of the possibility that some negligent voters will not have their ballots counted.