In the end, the September 15 decision of the three 9th Circuit judges halting the California recall election will be but a historical footnote. Lies, Damn Lies and Statistics

What a difference reality makes.

Three weeks ago, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously told us that California couldn’t hold its constitutionally called Gubernatorial Recall Election on Tuesday, October 7, 2003, because "forty-four percent of the electorate will be forced to use a voting system so flawed that the Secretary of State has officially deemed it ‘unacceptable’ and banned its use in all future elections." The judges were objecting to California’s continued regional use of punch card ballots and VotoMatic voting equipment because, according to their decision, such methods are so plagued with "inherent defects … that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all." The judges went even further, stating that "[c]ompounding the problem is the fact that approximately a quarter of the state’s polling places will not be operational because election officials have insufficient time to get them ready for the special election, and that the sheer number of gubernatorial candidates will make the antiquated voting system far more difficult to use."

Fast forward to Wednesday, October 8, 2003 – or nearly eight million votes later – and exactly none of these judicial statements are true.

First and foremost, the judges – who were reversed unanimously by 11 of their court colleagues sitting en banc, or "as a whole" – simply got it wrong in opining that the California Secretary of State had "officially deemed" punch card ballots "unacceptable" and had "banned" their "use." Indeed, former Secretary of State Bill Jones informed the public and the mass media he had been misquoted in the decision temporarily halting the already ongoing election.

Jones acknowledged that, in the aftermath of the Florida recount of the 2000 Presidential Election, he pushed for California to modernize its voting systems by replacing VotoMatic punch card machines with newer electronic and optical scanning systems before the year 2006, later accelerated to March 2004. But neither Jones, nor his successor, current Secretary of State Kevin Shelley, ever said punch card ballots or the VotoMatic machines were "unacceptable" or illegal to use in current electoral contests. Quite the opposite, Jones noted. "If I had thought these systems were so egregious, I would not have" suggested keeping punch card ballots until 2006, he emphasized.

What’s more, the perfectly "acceptable" nature and lawful use of punch card ballots and VotoMatic machines is backed up by electoral realities both in California’s immediate past and scheduled future. Not only did the state continue to successfully use the much-maligned chad-based ballots post-2000, such as during the 2002 off-year Congressional elections, but the perforated ballots and stylus-enabled machines are to be used in elections occurring across the state in November 2003, a month after the recall election. In other words, punch card ballots and VotoMatic voting machines weren’t banned from use in California elections; they were officially recognized standard electoral equipment.

Second, the three-judge panel inaccurately described reality when it set up a Hobbesian choice between going ahead with a "flawed" recall election on October 7, 2003, or delaying the contest for perfection until 2004. The picture was not so black and white. Proceeding with the scheduled election using VotoMatic punch cards would have had electoral consequences beyond a hypothetical "40,000 voters … not hav[ing] their vote counted at all," and delaying the contest could not have achieved an election free of disenfranchised voters.

Here, the judges not only misstated the record, they also committed the sin of omission. Quite simply, at no point in time were there 40,000 uncounted votes. It wasn’t true on September 15, 2003, when the judges temporarily halted the election, nor did it become true by October 8, 2003, when the election was complete. The number was a pure fiction, a hypothetical creation extrapolated from studies computing voting machine error rates.

The judges never mentioned there would still be residual, or disqualified, ballots no matter what balloting system Californians used. In other words, even if all of California used the electronic or optical scanned voting systems preferred by the judges, some votes would "not be counted at all." According to a study by the Caltech/MIT Voting Technology Project, electronic voting machines, such as button and touchscreen equipment, were responsible for a higher percentage of residual, or invalid, votes than punch card ballots in the gubernatorial and senatorial elections from 1988 to 2000.

The judges also failed to mention the hundreds of thousands of votes that would, with certainty, go "uncounted" as a direct result of their decision to put off the election until 2004. Nearly a half million voters had already voted absentee when the judges decided to scrap the October 7 election day. Thus, the judges’ decision was, in essence, a calculated choice to toss out what turned out in the end to be more than two million legally cast absentee votes to ensure that a hypothetical 40,000 votes wouldn’t be lost – a poor balancing of interests on any scale.

Finally, the three-judge panel once again mistook their own personal impressions of California’s electoral landscape for reality in finding that a lack of time and preparation combined with an overwhelming number of candidates would "make the [state’s] antiquated voting system far more difficult to use." The voters disagreed when given a chance on election day. According to exit polling done by Edison Media Research/Mitofsky International, only two percent of the electorate reported "serious problems" with the voting equipment or length of the ballot," and only nine percent reported any problems at all. An overwhelming 87 percent of the respondents said they had "no problems" in voting, and both The New York Times and The Washington Post reported that the "maligned punch cards … seemed to pose little problem" or "no reported problems," respectively. This, despite exit polls showing 35 percent of the respondents had voted using the punch card ballots.

In the end, the September 15 decision of the three 9th Circuit judges halting the California recall election will be but a historical footnote. The decision never had any real impact since the election went on without a hitch after the brief judicial hiccup was quickly overruled by 11 other jurists more in touch with reality. But if the decision’s only purpose now is to collect dust on the bookshelves of law libraries, that will be a tragedy because it should be a continual reminder that when it comes to the law – like anything else – the facts really do matter.

October 10, 2003
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