Ninth Circuit Erred in Allowing Recall Election with Punch Card Votes

Abstract

Among the many lawsuits filed during the unprecedented California gubernatorial recall election, the one that garnered the most attention was the case challenging the use of punch card voting in six California counties. In that suit, plaintiffs argued that the election should be delayed because the allegedly higher error rates of punch card voting compared to other systems in California denied those voters in punch card counties their equal protection rights under the California constitution and also violated the Voting Rights Act. Professor Hasen argues that the original Ninth Circuit decision delaying the election until punch card voting could be eliminated was correct, and the later en banc decision allowing the election to go forward with the selective use of punch cards was unfortunate, though understandable given the closeness of the recall election. Hasen argues that under the Supreme Court's decision in Bush v. Gore, the selective use of punch card voting constitutes an equal protection violation. The en banc court did not reach the issue. Hasen concludes that the en banc decision does not preclude other plaintiffs from bringing similar challenges in the future, and that the window remains open for voting reform lawsuits until the Supreme Court interprets Bush v. Gore otherwise.