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Ballot Battle Recalls Bush, Gore

Attorney Andrew Cohen analyzes legal issues for and CBS News.

The Justices of the United States Supreme Court soon may have an opportunity to tell the rest of us what they really meant when they handed the presidency to George W. Bush following the 2000 presidential. By relying extensively upon the High Court's controversial Florida recount ruling to delay the California recall election until next March, the 9th U.S. Circuit Court of Appeals Monday has put into play the legacy of Bush v. Gore.

If the Supreme Court decides to get involved in this Cali Catfight, there is little chance the Justices will be able to resolve the issues raised by the October 7th vote without going one way or the other on the precedent they set when they ruled Florida could not recount certain ballots without recounting all ballots.

Either Bush v. Gore gets strengthened to the delight of Democrats, or it gets limited to the glee of Republicans. It's either a win-win for the Court or a lose-lose, depending upon your particular perspective.

That's because the 9th Circuit filled the relevant part of its 66-page ruling Monday with references to the seminal Supreme Court ruling that decided a presidency. There are some factual and legal differences between the Florida recount fight and the California recall battle-- differences that may allow for wriggle room as the case moves up on appeal. But the three-judge appellate panel focused instead on the obvious similarities between the two cases. In both cases, the 9th Circuit panel found, the right to vote and the right to have one's voted counted were and are at stake.

In both cases, the appeals court concluded, a state had sanctioned or permitted "unequal method of counting votes among counties" so that a vote in one county was "not entitled to the same weight" as a vote cast in another county.

Setting aside the legalese, in both cases punch-card ballots-- they of "pregnant chad" fame-- are the root of the problem. Based upon their ruling Monday, the appeals judges believe the trauma of the Florida recount-- and the way that the Supreme Court and California officials reacted to it-- required them to rule that California must do elections right, or at least better, or not do them at all until at least next March.

To support a decision they surely knew would bring back all the familiar cries of "liberal bias," the 9th Circuit panel relied heavily on a decision two years ago by the California Secretary of State to decertify the punch-card ballots as "obsolete" relics that might generate a "Florida-style election debacle."

The Secretary of State then agreed in a court-approved consent decree to ensure that no punch-card ballots would be used in the state after March 1, 2004. These actions, the appeals court found, established for purposes of an injunction that the punch-card system is "defective" and "unacceptable" and thus likely to generate voting errors that rise to the level of Constitutional infractions.

Those infractions, the Court ruled, were similar to many other voting rights infractions that the Supreme Court has recognized and protected against. Citing Bush v. Gore, the 9th Circuit judges held that an October recall election, when over 40 percent of the voting populace would be required to use ballots their secretary of state had already decertified, would fail to give "some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

In short, the appeals court found, there "is no rational basis for using voting systems that have been decertified as `unacceptable' in some counties and not others.'"

Then the appellate panel turned to another element involved in injunction cases-- balancing the hardships between the parties seeking court help and those who are not. Because disenfranchised voters-- some 40,000 by the court's estimate-- would have no remedy following an election, the judges found that this hardship trumped any financial or logistical hardship to the state brought on by a cancelled election. "Normally, enjoining an election would require that a special election be held later, at great financial cost," the judges wrote. "But here, the election Plaintiffs see to enjoin is itself a special election, and if enjoined, voting would occur at a regularly scheduled election." Whose says judges aren't frugal?

As it relates to Bush v. Gore, the 9th Circuit argument comes down to this: If the Supreme Court would not countenance the disparate treatment of voters from county to county after an election-- the gravamen of the Florida ruling-- then why or how could it countenance the disparate treatment of voters from county to county before an election, especially when election officials concede in advance?

It's a ruling that is really an explicit dare to the Justices: if you meant what you said back on December 12, 2000 then prove it by upholding our ruling. If you didn't, go ahead and try to get out from under your own precedent.

What's next? Either a direct appeal to the Supreme Court or an attempt to get the full 9th Circuit panel to reconsider the ruling that only three of their members offered Monday. The full appeals panel has to hear and decide any rehearing request while the Supreme Court does not. On the other hand, the Supreme Court might be itching to reverse a ruling from its nemesis court on the West Coast while the full panel of 9th Circuit judges might want to support their own colleagues. So just don't go believing anyone who tells you he knows how this all is going to turn out.

By Andrew Cohen

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