September 10, 2003 - The Supreme Court may be back in the business of acting as a Supreme Election Board for State elections faced with their own rulings in Bush v. Gore . A three judge panel of the country’s most liberal Court of Appeals is considering whether to delay the California Recall Election on the grounds that the use of punch card machines in some counties of the state and more accurate election methods in other counties deprive voters in the counties with punch cards of equal protection of the laws. The plaintiffs argue that the use of those machines with their proven inaccuracies make it more likely that voters using those will be more likely to have their votes miscounted than voters using more accurate methods. It is the exact ground used by the Court to stop the Florida recount.

The California trial judge, U.S. District Judge Stephen V. Wilson, had earlier presided over an ALCU suit to require California counties to replace the faulty system and set a deadline for replacement of March 2004. In approving the agreed order in that suit he held that the punch card system was inherently inaccurate and deprived voters using it of the equal protection of the law in that the inaccuracies diluted the weight of their votes. It was on that same basis, the dilution of the weight of the vote, that the Supreme Court scuttled the Florida recount. In his ruling he said that the system "suffered from an error rate nearly double that of other polling technologies, and risked continuing effectively to disenfranchise thousands of voters as a result."

The present suit, brought by the ACLU and other organizations, does not seek to avoid the recall election but rather to delay it until after the California counties using the punch card system replace it by next March. Wilson ruled against the plaintiffs holding that the fact that the faulty system cannot be replaced before the March deadline does not justify the delay because the State has an overriding interest in the rapid resolution of the Recall issue. That is the ruling that the Plaintiffs will argue is in error citing the Supreme Court’s statement in Bush v. Gore that "[A] desire for speed is not a general excuse for ignoring equal protection guarantees."

No matter how the Ninth Circuit rules the Supreme Court is almost sure to be faced with an emergency appeal as it was in the Florida recount case. Having held in Bush v. Gore that “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," the Court would be hard pressed not to apply the same standard in California. Nor would it be likely to dodge the case without appearing to be overtly partisan. This may be a deep pothole in the way of Arnold’s drive to Sacramento.