Judges Wary Over Use of Punch-Card Machines

Three federal appellate judges expressed skepticism Thursday that the Oct. 7 recall election can be conducted properly using punch-card voting machines in Los Angeles and other urban counties.

The judges grilled an attorney for the state on how he could justify holding the election with the possibility that 40,000 voters might be disenfranchised because of errors from the machines.

The state already has conceded that the machines are error-prone and antiquated. Under a court order, they are to be taken out of use next March. However, voting officials have said there is no time to replace them before the scheduled recall election.

“So we have to accept the unacceptable, is that what you are saying?” Judge Harry Pregerson of the U.S. 9th Circuit Court of Appeals asked Deputy Atty. Gen. Douglas J. Woods, representing California Secretary of State Kevin Shelley.

Woods acknowledged that the punch-card system is “obsolete, antiquated and unacceptable,” and has been decertified for use by the state as of March 4, 2004. But he said that there has to be time for a transition period.

Woods said that the secretary of state’s office is conducting an education campaign in an effort to make sure that fewer voters have problems with the machines.

That assertion drew a challenge from Judge Sidney Thomas. “I haven’t seen evidence that would indicate education can overcome” the problems with the punch-card machines, he said. “We have to accept your assertion and hope.”

Thomas also expressed concern that the problems with the machines might be exacerbated because the ballot has 135 candidates vying to replace Gov. Gray Davis and there will be considerably fewer polling places than normal.

But, said Woods, “It’s too late in the game to switcheroo.” The harm to the state if the election is postponed is “too severe,” he said.

The American Civil Liberties Union has asked the judges to postpone the election. The group argues that using error-prone machines in some parts of California but not others would violate the Constitution by making some people’s votes count more than others. The argument is based on the U.S. Supreme Court’s decision in the case that resolved the presidential election in 2000 and on previous high-court decisions establishing the principle of one person, one vote.

In the case that established that rule, the late Chief Justice Earl Warren wrote that “the basic principle of representative government” is that “the weight of a citizen’s vote cannot be made to depend on where he lives.”

The ACLU also argues that using the punch-card machines could violate the federal Voting Rights Act because the people who are at risk of having their votes miscounted are disproportionately minorities.

At the end of his argument, Woods appeared sufficiently concerned about the prospect that the appeals court would halt the election that he asked the judges to give him sufficient time to appeal such a ruling to the Supreme Court.

The judges offered no immediate response, nor did they say, at the end of nearly two hours or argument, when they would rule.

Attorneys for both sides said afterward that they expected a decision in the next few days.

On Aug. 20, U.S. District Judge Stephen V. Wilson in Los Angeles rejected the ACLU suit and permitted the election to go forward.

Wilson acknowledged that the punch-card machines suffer from “an error rate nearly double that of other polling technologies,” but the election had to be held by Oct. 7 under the California Constitution. Postponing it would frustrate the will of the electorate, he ruled.

ACLU attorney Mark Rosenbaum said that postponing the election for up to five months was a better alternative than permitting thousands of individuals to have their votes annulled because of defective machines.

Rosenbaum said that if the election is held on Oct. 7, more than 40,000 voters will have their votes voided as a result of errors generated by the punch-card machines. That figure comes from a study done for the plaintiffs by Henry Brady, a political scientist at UC Berkeley.

In addition to Los Angeles, the other counties still using punch-card machines are Mendocino, Sacramento, San Diego, Santa Clara and Solano. Those counties had 44% of the state electorate in the 2000 election. Voters in those counties, according to Brady’s study, would be 2.5 times as likely as residents of the state’s 52 other counties to have their votes voided.

At one point, Judge Richard Paez noted that California had held a statewide election last year using the same machines.

Rosenbaum said the current case was different. If the general election had been blocked last year, he said, California residents would not have been able to elect either congressional representatives or state officials, such as Davis, thereby violating the federal Constitution.

This time, by contrast, the election is limited to one state office, and the recall could be held using new voting machines in a few months. The question is whether constitutional principles are “to be sacrificed purely for the purposes of expediency,” he said.

The suit has echoes of the 2000 presidential election because it involves the same kinds of machines -- infamous for their “hanging chads” -- that created problems in Florida. At the end of a six-week legal battle, the Supreme Court, in Bush vs. Gore, halted a statewide recount in Florida, saying the state did not have uniform standards, meaning that votes might be counted differently in different counties.

At one point, while questioning Woods, Judge Paez quoted one of the key passages in that decision:

“Having once granted the right to vote on equal terms, the state may not, by later arbitrary or disparate treatment, value one person’s vote over that of another.”