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Tuesday, September 16, 2003

Posted by Jake
The Southern California Law Blog: The Case For Delaying The Recall

Interesting analysis of the Ninth Circuit Decision from SoCalLawBlog (via PrestoPundit):

If different counties in Florida were using different methods to interpret ballots that were already cast (i.e. one county would consider a 'hanging chad' as a vote while another would discount it), is that the same as having different voting systems (i.e. punch-card vs. touch-screen voting) in terms of passing constitutional muster. The Supreme Court held the first instance in Florida to be unconstiutional under the Equal Protection Clause. But can the reasoning of how to interpret a cast ballot be applied to the voting systems themselves?

Contrary to the claims of the Ninth Circuit and the supporters of this decision, that issue was never addressed by Bush v. Gore. Indeed the Supreme Court explicitly stated in its decision that such a question has not been decided. Bush v. Gore states, 'The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.'

Amazingly, the Ninth Circuit quotes this very same passage in its decision to declare the opinion to be simple application of Bush v. Gore. Apparently, the Ninth Circuit has seemingly interpreted the phrase 'local entities' to mean 'states', when clearly it was meant to refer to 'counties'. This issue has clearly not been decided by the Supreme Court yet.


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