2003 California Court Decision:
Clippings from the US Ninth Circuit Court of Appeals Ruling

On September 15, 2003, the US Ninth Circuit Court of Appeals reversed a lower court ruling and ordered the California gubernatorial recall election postponed.

The full decision, as well as a summary of the ruling and other court documents, are available from their web site:

Southwest Voter Registration Education Project v. Shelley, 03-56498

The full decision is some 66 pages long. It includes a fairly detailed history of the punchcard ballot, and is well worth the time to read it. Instead of attempting to summarize the issues, we have gone through the text and created this collection of direct quotations that touch on the issue of usability and the effectiveness of the election. Page numbers are provided to help you locate the clipping in the full decision.

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Page 4
Unlike mechanical lever machines, the VotoMatic system does not have any built-in protection preventing the voter from casting more than one vote for a candidate or ballot measure. In that event, the software is designed not to count the vote at all.

Pages 4-5
The system is subject to mechanical problems. If the mechanical holder is not constructed properly, if its materials have deteriorated through use, if the punchcard has not been pre-scored properly, if the punchcard’s manufactured dimensions are not within tolerances, the vote will either not be counted or will be counted incorrectly.

Page 8
The origins of the present controversy date to the aftermath of the 2000 presidential election, when national attention was drawn to the eccentricities of voting by pre-scored punchcards.

Page 9
In the official decertification proclamation dated September 18, 2001, the Secretary of State stated:

“As I order this proclamation, I want to be very clear on two points. First, Votomatic and Pollstar voting systems are old technology and their use today can be seen as analogous to the use of typewriters – they worked well for many years but are now obsolete in the world of the personal computer. One of these systems was initially approved for use in 1965. Voters are entitled to have the infrastructure of democracy upgraded to reflect technological improvements to the voting process. Second, it is critically important that the transition to any new technologies be orderly and well thought out. A poorly planned rush to implement a new voting technology without providing adequate time for counties to purchase these systems, and to train their staff, pollworkers, and voters on the proper use of new equipment could easily result in great harm to the most fundamental right of the people, the right to vote.”

Page 10
In a press release accompanying the proclamation, the Secretary of State stated that “[w]e cannot wait for a Florida-style election debacle to occur in California before we replace archaic voting systems.”

Page 12
If the Secretary of State had issued the certification a month and a half later than he did, as originally planned based on the date by which sufficient valid petition signatures needed to be filed, the recall election would have been held at the next regular election March 2, 2004. However, sufficient signatures were submitted before the deadline, motivating the Secretary of State to issue a certification earlier than originally planned. One day after the Secretary of State’s certification, the California Lieutenant Governor scheduled the recall vote for October 7, 2003.

Page 13
“Voting is one of the most fundamental and cherished liberties in our democratic system of government.” Burson v. Freeman, 504 U.S. 191, 214 (1992) (Kennedy, J., concurring). As the Supreme Court put it in Reynolds v. Sims, 377 U.S. 533, 555 (1964): “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

In this case, Plaintiffs allege that the fundamental right to have votes counted in the special recall election is infringed because the pre-scored punchcard voting systems used in some California counties are intractably afflicted with technologic dyscalculia. They claim that the propensity for error in these voting systems is at least two and a half times greater than for any other voting technology used in California. The effect is not trivial.

Pages 13-14
These counties [[using the old machines]] comprise 44% of the total electorate. They include the most populous county in the State and the county in which the state capitol is located.

Plaintiffs tendered evidence showing that 40,000 voters who cast ballots in these counties would not have their votes counted because of technological defects in the pre-scored punchcard voting system. It is perhaps ironic that the sitting governor could well cast a vote on his own recall that would not be tallied. Many candidates seeking to replace him would face a similar risk. Plaintiffs also allege that the affected counties contain a significantly higher percentage of minority voters than the other counties, causing a disproportionate disenfranchisement of minority voters.

Page 14
The first factor in a preliminary injunction analysis is the probability that the plaintiff will succeed on the merits. Under the continuum analysis of Clear Channel, the greater the demonstrated harm, the lesser the requirement of probability of success. Here, the district court assumed irreparable harm, and we agree with its assumption. As the district court properly observed, Plaintiffs will have no remedy for their claims following the election. The district court concluded that the Plaintiffs had no likelihood of success on the merits of their claims as a matter of substance, and further concluded that the claims were likely barred by the doctrines of res judicata and laches. We respectfully disagree and conclude that the district court erred in its legal analysis.

Page 15
In this case, Plaintiffs’ Equal Protection Clause claim mirrors the one recently analyzed by the Supreme Court in Bush v. Gore, 531 U.S. 98 (2000). As the Supreme Court held in that case: “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.” Id. at 104-05 (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)). This holding was consistent with a long line of Supreme Court precedent holding that the right to vote includes the right to have one’s vote counted.

Page 18
Plaintiffs argue that the use of defective voting systems creates a substantial risk that votes will not be counted. In addition, they claim that the use of defective voting systems in some counties and the employment of far more accurate voting systems in other counties denies equal protection of the laws by impermissibly diluting voting strength of the voters in counties using defective voting systems. In short, the weight given to votes in non-punchcard counties is greater than the weight given to votes in punchcard counties because a higher proportion of the votes from punchcard counties are thrown out. Thus, the effect of using punchcard voting systems in some, but not all, counties, is to discriminate on the basis of geographic residence.

Pages 20-21
No voting system is foolproof, of course, and the Constitution does not demand the use of the best available technology. However, what the Constitution does require is equal treatment of votes cast in a manner that comports with the Equal Protection Clause. Like the Supreme Court in Bush, “[t]he question before [us] is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” 531 U.S. at 109. Rather, like the Supreme Court in Bush, we face a situation in which the United States Constitution requires “some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.” Id.

Pages 22-23
Roy G. Saltman, referenced earlier, who had produced the seminal work in this field in the 1970s and 1980s …

Mr. Saltman identified several problems inherent in the use of pre-scored punchcard systems, including:

The fact that voters rather than machines are responsible for removing the chad, leading to chads being incompletely separated from the punchcard, leaving the chad attached to the punchcard. During the counting process, these hanging chads may be pressed back into the card, altering the voters’ intent.

• Chads intended not to be removed may be removed during the counting process due to excessive handling, action of the counting machine, or manipulation, altering the voter’s intent.
• Unlike other systems, there is no mechanism to prevent overvoting (i.e., voting for more than one candidate or more than the allotted number of candidates).
• Voters are unable to examine the ballot for accuracy before leaving the polling place.
• Manual examination of pre-scored punchcard ballots to determine the voter’s intent is highly subjective. For example, manual counters are forced to determine whether a pinprick point on a chad demonstrated an intent to register a vote.
• The defects in the pre-scored punchcard voting system are fundamental and cannot be fixed by engineering or management alterations

The experience of the presidential election in Florida in 2000 supports Mr. Saltman’s conclusions.

Pages 23-24
In addition, the use of some mechanical guides, such as the one designed for the now infamous “butterfly” ballot, have proven confusing to the voter. Disabled and visually impaired voters have particular difficulty in using the technology. All of this demonstrates that pre-scored punchcard systems are more prone to human error than other certified systems. And errors may not be treated equally. The Supreme Court commented on one aspect of this problem in Bush, observing that under the pre-scored punchcard voting system:

[t]he citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernible by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernible by the machine, will have his vote counted even though it should have been read as an invalid ballot.

Page 25
Independent research confirms the error difference between pre-scored punchcard systems and others in use. The July 2001 Report of the Caltech-MIT Voting Technology Project (“Caltech-MIT Report”) studied the residual vote rates of different voting systems from 1988-2000 in the entire country, and found that punchcards lose significantly more votes than optically scanned paper ballots.

Page 26
The district court discounted the impact of voting systems on the special election, relying in part on the Secretary of State’s attestation that he would “be undertaking extensive voter education efforts that could have the effect of lowering the residual rate in the upcoming election.” However, Plaintiffs effectively countered this unsupported assertion with statistical evidence showing that voter education was ineffective in counteracting the error rates inherent in the use of prescored punchcard voting systems.

… Further, as we shall discuss later, the Secretary of State has already missed statutory deadlines for submitting educational information to voters concerning the initiatives on the ballot

Page 27
Intervenor Costa argues that every voting system is prone to some errors and that we need to allow some “play in the joints.” If there were equal “play in the joints,” this argument would have more force. However, a long line of studies establishes that the difference of error rates between pre-scored punchcard voting systems is of statistical significance at the highest level, even accounting for other factors.

Page 56
[[following a long section on the scheduling of elections]]:
Thus, public interest strongly favors holding the recall election during the general election in March 2004 to avoid an equal protection violation. The California Constitution already permits up to a six month delay to advance the State’s interest in efficiency and convenience; the requested injunction would result in only a seven and a half month delay to cure a substantial constitutional violation. As the Supreme Court put it in Bush: “The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” 531 U.S. at 108.

Pages 56-57
The State has an interest in holding a fair election – one trusted by the candidates and the voters to yield an accurate and unbiased result. The high error rate associated with the decertified machines to be used by 44 percent of the voters in October would undermine the public’s confidence in the outcome of the election. The margin of victory could well be less than the margin of error in the use of punchcard technology. This would not be the case in an election held in March 2004, when all the obsolete machines will have been totally withdrawn from use. Avoiding an election that promises to dilute the votes of any particular community – let alone communities with a disproportionately high concentration of minority voters – firmly promotes the public interest in a fair election.

Page 57
There are also some unique pragmatic problems associated with this election that may be alleviated by a short postponement. For example, because of the short timetable established for this election, approximately a quarter of California’s polling places – 5,000 of 20,000 – will not be ready for use and voters will be forced to vote at a different polling place. This has the potential of creating substantial voter confusion on election day. Further, the sheer number of gubernatorial candidates — there are currently 135 names on the October 2003 ballot — will make operation of the plastic guide substantially more cumbersome to use, potentially compounding the inherent problems in its use.

Pages 61-62
[[ Discussing the initiatives that have been placed on the ballot]]
The Secretary of State’s action in placing the propositions on the special election ballot caused elections officials to violate these provisions of state law. Elections officials began mailing ballot pamphlets 33 days before the election, which was clearly not within the period prescribed by the Election Code. The Secretary of State provided a copy of the ballot pamphlet to the printer only 37 days prior to the election rather than the required 80 days. The public was permitted to examine the pamphlet only 57 days prior to the election, rather than the required 100 days. If the effect of voter education is as significant as the Secretary of State claims, this delay could have a profound effect on the outcome of the initiative votes.

Page 63
In sum, in assessing the public interest, the balance falls heavily in favor of postponing the election for a few months. The choice between holding a hurried, constitutionally infirm election and one held a short time later that assures voters that the “rudimentary requirements of equal treatment and fundamental fairness are satisfied” is clear. See Bush, 531 U.S. at 109. These issues are better resolved prophylactically than by bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory. The Supreme Court’s admonition in Bush bears re-quoting: The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees. Id. at 108.

In addition to the public interest factors we have discussed, we would be remiss if we did not observe that this is a critical time in our nation’s history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. A short postponement of the election will accomplish those aims and reinforce our national commitment to democracy.

Page 65
The Secretary of State is enjoined from conducting an election on any issue on October 7, 2003. In view of the pendency of the election, we direct the Clerk of Court to issue the mandate forthwith, but stay our order for seven (7) days to allow the parties to seek further relief from this decision, if they so desire.

REVERSED.