Punch-Card Voting Systems and the California Gubernatorial Recall: Overview of Appellate Court Decisions
CRS Report for Congress
Punch-Card Voting Systems and the
California Gubernatorial Recall: Overview of
Appellate Court Decisions
L. Paige Whitaker
American Law Division
On September 23, 2003 an eleven member panel of the U.S. Court of Appeals for
the Ninth Circuit unanimously reversed the decision in Southwest Voter Registration
Education Project v. Shelley in which a three-judge panel of the Ninth Circuit had
ordered the California gubernatorial recall election postponed. The en banc panel
determined that the plaintiffs had not shown a strong likelihood of success on the merits
of their argument that holding the recall election on October 7, 2003 would violate the
Equal Protection Clause of the U.S. Constitution because voters in counties that use
error prone punch-card machines would have a comparatively lesser likelihood of
having their votes counted than voters in counties that use other technologies. The en
banc court determined that at the current time, it is “merely a speculative possibility”
that a denial of the right to vote will influence the result of the election. In the earlier
three-judge panel decision, the court had agreed with the plaintiffs, relying on the 2000
Supreme Court decision Bush v. Gore, that using error prone punch-card voting
machines in counties that included forty-four percent of registered voters in California
would unconstitutionally disenfranchise voters in violation of the Equal Protection
Clause. Plaintiffs have stated that they will not appeal this decision to the U.S. Supreme
Court. As a result, the California gubernatorial recall election is scheduled to occur on
October 7, 2003.
On March 25, 2003, a petition for the recall of California Governor Gray Davis was
served on the Secretary of State pursuant to Article II, Section 14(a) of the California
Constitution. On July 23, 2003, the Secretary of State certified that the petition contained
a sufficient number of signatures to hold an election. The Lieutenant Governor set the
election for October 7, 2003 in accordance with Article II, Section 17 of the California
Constitution. In addition, the Secretary of State added two ballot initiatives that were
originally scheduled for the March 2004 regular election ballot to the special recall
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election ballot.1 On August 7, 2003, the American Civil Liberties Union (ACLU) filed
suit in U.S. district court on behalf of three civil rights groups: the Southwest Voter
Registration Education Project, the NAACP, and the Southern Christian Leadership
Conference, seeking an injunction to delay the recall election until it could be conducted
without the use of error prone punch-card balloting machines. Plaintiffs argued that using
error prone punch-card voting machines would violate the Equal Protection Clause of the
Constitution because voters in counties that use punch-card machines would have a
comparatively lesser likelihood of having their votes counted than voters in counties that
use other technologies. On August 20, 2003, the district court denied the injunction.
Ninth Circuit Three-Judge Panel Decision
On September 15, 2003 a three-judge panel of the U.S. Court of Appeals for the
Ninth Circuit reversed the district court’s denial of a preliminary injunction with respect
to the California gubernatorial recall election (and two ballot initiatives) and ordered the
election postponed. In Southwest Voter Registration Education Project v. Shelley, the
Ninth Circuit panel, relying on the Supreme Court’s decision in Bush v. Gore,2 found that
California would face a substantial risk that votes by forty-four percent of the electorate
would not be counted with the use of error prone punch-card voting machines in violation
of the Equal Protection Clause of the U.S. Constitution3 if the election took place as
scheduled on October 7, 2003.4 According to the court, at least six California counties
plan to employ punch-card voting technology during the recall election: Los Angeles,
Santa Clara, San Diego, Sacramento, Medocino, and Solano, which comprise 44% of the
total electorate in the state.
In its decision, the three-judge panel observed that “[v]oting is a fundamental right
subject to equal protection guarantees under the Fourteenth Amendment.”5 Finding that
the plaintiffs’ equal protection claim “mirrors” the claim that the Supreme Court analyzed
in its 2000 decision in Bush v. Gore, the three-judge panel noted that the Court in that
case held that: “[h]aving once granted the right to vote on equal terms, the State may not,
by later arbitrary and disparate treatment, value one person’s vote over that of another.”6
Moreover, the court found that the Bush v. Gore decision was consistent with established
Supreme Court precedent including its holding in the 1964 decision Reynolds v. Sims
where it announced: “Undeniably the Constitution of the United States protects the right
1 See, Southwest Voter Registration Education Project v. Shelley, No. 03-05715, slip op. at 11-12
(9th Cir. 2003). Proposition 53, a proposed constitutional amendment that would require a portion
of the state’s budget be set aside for infrastructure spending and Proposition 54, a measure that
would prohibit government agencies from collecting certain racial information, are also
scheduled to appear on the October 7, 2003 election ballot.
2 531 U.S. 98 (2000).
3 U.S. CONST. amend XIV, § 1.
4 Southwest Voter Registration Education Project v. Shelley, No. 03-05715, slip op. at 13 (9th Cir.
5 Id. at 16.
6 Id. at 17 (quoting Bush v. Gore, 531 U.S. 998, 104-05 (2000)).
of all qualified citizens to vote ... [and] it has been repeatedly recognized that all qualified
voters have a constitutionally protected right to vote, and to have their votes counted.”7
Plaintiffs argued that the use of defective, error prone voting systems creates a
substantial risk that votes will not be counted. Furthermore, plaintiffs maintained that the
use of error prone voting systems in some counties while using more accurate systems in
other counties denies equal protection of the laws by impermissibly diluting voting
strength of the voters in counties using the defective systems. Persuaded by plaintiffs’
arguments, the three-judge panel found that the weight afforded to votes in counties not
using punch-card voting is greater than the weight afforded to votes in counties using
punch-card voting because a higher proportion of the votes from counties using punch-
card voting would not be counted. Therefore, the court held, “the effect of using
punchcard voting systems in some, but not all, counties, is to discriminate on the basis
of geographic residence,” creating a “classic voting rights equal protection claim.”8
Invoking the Supreme Court’s holding in Bush, that using different standards for
counting votes in different counties throughout Florida violated the Equal Protection
Clause, the Southwest Voter Registration three-judge court panel concluded that using
error prone voting equipment in some counties, but not in others, “will result in votes
being counted differently” among the counties in California.9 Accordingly, the court
agreed with plaintiffs that the issuance of a preliminary injunction was warranted and
reversed the order of the district court.
Ninth Circuit En Banc Decision
Shortly after the three-judge panel decision was issued, the State of California and
representatives from groups favoring the recall appealed. On September 23, 2003, an
eleven member panel of the U.S. Court of Appeals for the Ninth Circuit, unanimously
reversing the three-judge panel decision in Southwest Voter Registration Education
Project v. Shelley, reinstated the October 7, 2003 California gubernatorial recall election.
In the en banc opinion, the court found that if the election were postponed, because of the
"enormous resources" already invested in the gubernatorial recall effort, the state of
California and its citizens would suffer “material hardship.”10 Specifically, the court
noted that funds had been expended for election materials and that hundreds of thousands
of absentee voters had already cast their ballots. According to the court, "[i]nterference
with impending elections is extraordinary, and interference with an election after voting
has begun is unprecedented"; furthermore, “[i]nvestments of time, money and the
exercise of citizenship rights cannot be returned."
In its opinion, the en banc court noted that it was required to grant substantial
deference to the U.S. district court’s ruling in this case, unless it found that the court had
7 Id. (quoting Reynolds v. Sims, 377 U.S. 533, 554-55 (1964).
8 Id. at 18.
9 Id. at 20.
10 Southwest Voter Registration Education Project v. Shelley, No. 03-56498, slip op. at 10 (9th
abused its discretion or relied on an erroneous legal premise.11 The eleven-judge panel
concluded that the district court did not abuse its discretion or misinterpret the law in
holding that plaintiffs had not established a clear probability of success on the merits of
their equal protection claim.12 Accordingly, the eleven-judge panel exercised deference
and did not address the substantive issues presented in this case such as whether the use
of punch-card machines would violate the Equal Protection Clause or the Voting Rights
Acknowledging that the plaintiffs were "legitimately concerned that the use of the
punch-card systems will deny the right to vote to some voters who must use that system,"
and that "there is no doubt that the right to vote is fundamental," the court nonetheless
determined that at the current time, it is “merely a speculative possibility” that such a
denial of the right to vote will influence the result of the election.14 According to the
court, "there is a significant dispute in the record as to the degree and significance of the
disparity" in error rates between the punch-card machines and the types of equipment
used in the other California counties. Consequently, the court concluded, the plaintiffs
had only shown "a possibility of success on the merits," not "a strong likelihood," which
is the required standard for obtaining an injunction, according to the court.15 Finally, the
court determined that the district court did not abuse its discretion in finding that
''[p]laintiffs will suffer no hardship that outweighs the stake of the state of California and
its citizens in having this election go forward as scheduled and as required by the
Shortly after the Ninth Circuit en banc decision was issued, plaintiffs issued a
statement indicating that they would not appeal the decision to the U.S. Supreme Court
because the recall election is only two weeks away and they want to avoid prolonging the
uncertainty surrounding it. Some commentators have predicted that there might be more
litigation regarding this election following the October 7, 2003 election if the vote on the
recall and the two ballot initiatives is close.17
11 Id. at 7.
12 Id. at 8.
13 Codified as amended at 42 U.S.C. §§ 1971, 1973-1973bb-1.
14 Id. at 10-11.
15 Id. at 8-10.
16 Id. at 12.
17 See, e.g., Henry Weinstein, Court Sees Delay As Too Disruptive, L.A. TIMES, Sept. 24, 2003.