Make No Mistake -- Sloppy Errors Shake Faith in Court’s Judgment

Look, I’m no lawyer, let alone a constitutional scholar. But you don’t need a JD degree to recognize simple errors of fact in that court opinion ordering a delay in the recall election.

Little errors, to be sure. But it’s annoying when a three-judge panel of a U.S. court of appeals produces a piece of work that, in some places, is just plain sloppy.

Granted, the mistakes undoubtedly are irrelevant to the court’s conclusion: that the recall election scheduled for Oct. 7 should be delayed -- most likely until the March 2 primary -- because some people using faulty old punch-card voting machines could be denied their equal protection rights guaranteed by the U.S. Constitution.

An 11-member panel of the 9th Circuit Court of Appeals will reconsider that decision today and perhaps reverse it.

Meanwhile, I plead guilty to nit-picking. But, come on, if the court can’t get it right on some small, simple things, how can it be trusted on the big, complex issues of law?

I wouldn’t even mention this except for the most glaring error: the opinion’s repeated reference to Proposition 53 as an “initiative,” constantly coupling it with Prop. 54 as one of the ballot’s “two initiatives.”

It writes about these propositions acquiring “sufficient signatures to be placed on the ballot.... “

If you’re going to produce a long-winded opinion about voting rights and election procedures, it just seems you should know the difference between a citizens’ initiative and a legislature’s proposed constitutional amendment. Both must go on a ballot for voter approval, but that’s where the similarity ends.

With an initiative, citizens -- or, most likely, special interests -- gather voters’ signatures to place a proposal on the ballot. That’s what happened with Prop. 54, an initiative to prohibit state and local governments from collecting and using certain racial data in public contracting, hiring and education, among other operations.

Prop. 53, which would set aside state money for infrastructure projects, is not an initiative, a basic fact that could have been gleaned from a glance at the secretary of state’s voter information guide, mailed to 12 million California households. It was placed on the ballot by the Legislature.

To keep this civics lesson simple for the judges and their law clerks: Every initiative on the ballot is a proposition, but not every proposition is an initiative, any more than every car is a Ford.

As I kept reading about “the two initiatives,” I wondered how the judges were doing on the really tough stuff, like getting all the case law right. How closely related was this case, actually, to the U.S. Supreme Court’s Florida ruling in the 2000 presidential election? One “mirrors” the other, contended the three-judge appeals panel.

Other little things also grated on me.

There was an uncalled for, loaded description of Prop. 54: “[It] would prevent the state from collecting or retaining racial and ethnic data about health care, hate crimes, racial profiling, public education and public safety.” That characterization is open to dispute and, regardless, a more neutral version would have been proper for an unrelated court opinion.

The panel seemed to be showing its liberal bias.

The opinion also cited “the error rate” in “the 1992 gubernatorial election.” Whoops! Never happened. Was it the 1990 or the 1994 gubernatorial election the judges were referring to?

And somebody needs a spell check. The county is spelled “Mendocino.” The first “n” was left out.

Yeah, picky. Call it correctable clerical error, rather than judicial error. But also call it unnerving.

All this said, there’s something else that needs to be mentioned: The court had every right -- indeed a duty -- to postpone the election if it believed the obsolete punch-card machines would cause 44% of the California electorate to cast ballots that have a significantly lesser chance of being counted than the other 56%.

You’ve got to wonder how some of the court’s shrill critics -- particularly the radio shock jocks -- ever got out of high school civics; the anarchists who yelp that these judges are accountable to no one and are unilaterally seizing the citizens’ voting privileges.

They cry that 1.6 million voters signed petitions to force a recall election. But that doesn’t give them the privilege to trample on other people’s constitutional rights. Besides, even more Californians -- 3.5 million -- voted last November to give Gov. Gray Davis another four-year term. Not a nine-month term.

Once again slowly: The nation’s founders established a federal government with three branches -- two accountable to voters, and the other, the judiciary, separated from the masses and the impact of politics.

Courts don’t always get it right. But they would be wrong to listen to the howling dogs and voters in heat.

Cleaning up the sloppy errors, however, would give us more confidence in their judgments.