Recall Design

On September 15, 2003, the Ninth Circuit Court of Appeals reversed a lower court ruling and ordered the California gubernatorial recall election postponed.

Whitney Quesenbery, Director of Outreach, of the Usability Professionals’ Association Voting and Usability project has posted some selected excerpts from the text of the decision relating to design, voting systems, effectiveness, and usability:

“In this case, Plaintiffs allege that the fundamental right to have votes counted in the special recall election is infringed because the pre-scored punchcard voting systems used in some California counties are intractably afflicted with technologic dyscalculia. They claim that the propensity for error in these voting systems is at least two and a half times greater than for any other voting technology used in California. The effect is not trivial....

These counties [using the old machines] comprise 44% of the total electorate. They include the most populous county in the State and the county in which the state capitol is located.

Plaintiffs tendered evidence showing that 40,000 voters who cast ballots in these counties would not have their votes counted because of technological defects in the pre-scored punchcard voting system. It is perhaps ironic that the sitting governor could well cast a vote on his own recall that would not be tallied. Many candidates seeking to replace him would face a similar risk. Plaintiffs also allege that the affected counties contain a significantly higher percentage of minority voters than the other counties, causing a disproportionate disenfranchisement of minority voters....

Plaintiffs argue that the use of defective voting systems creates a substantial risk that votes will not be counted. In addition, they claim that the use of defective voting systems in some counties and the employment of far more accurate voting systems in other counties denies equal protection of the laws by impermissibly diluting voting strength of the voters in counties using defective voting systems. In short, the weight given to votes in non-punchcard counties is greater than the weight given to votes in punchcard counties because a higher proportion of the votes from punchcard counties are thrown out. Thus, the effect of using punchcard voting systems in some, but not all, counties, is to discriminate on the basis of geographic residence....

No voting system is foolproof, of course, and the Constitution does not demand the use of the best available technology. However, what the Constitution does require is equal treatment of votes cast in a manner that comports with the Equal Protection Clause. Like the Supreme Court in Bush, “[t]he question before [us] is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” 531 U.S. at 109. Rather, like the Supreme Court in Bush, we face a situation in which the United States Constitution requires “some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.”...

Independent research confirms the error difference between pre-scored punchcard systems and others in use. The July 2001 Report of the Caltech-MIT Voting Technology Project (“Caltech-MIT Report”) studied the residual vote rates of different voting systems from 1988-2000 in the entire country, and found that punchcards lose significantly more votes than optically scanned paper ballots.

The district court discounted the impact of voting systems on the special election, relying in part on the Secretary of State’s attestation that he would “be undertaking extensive voter education efforts that could have the effect of lowering the residual rate in the upcoming election.” However, Plaintiffs effectively countered this unsupported assertion with statistical evidence showing that voter education was ineffective in counteracting the error rates inherent in the use of prescored punchcard voting systems....

Further, as we shall discuss later, the Secretary of State has already missed statutory deadlines for submitting educational information to voters concerning the initiatives on the ballot....

The State has an interest in holding a fair election - one trusted by the candidates and the voters to yield an accurate and unbiased result. The high error rate associated with the decertified machines to be used by 44 percent of the voters in October would undermine the public’s confidence in the outcome of the election. The margin of victory could well be less than the margin of error in the use of punchcard technology. This would not be the case in an election held in March 2004, when all the obsolete machines will have been totally withdrawn from use. Avoiding an election that promises to dilute the votes of any particular community - let alone communities with a disproportionately high concentration of minority voters - firmly promotes the public interest in a fair election....

There are also some unique pragmatic problems associated with this election that may be alleviated by a short postponement. For example, because of the short timetable established for this election, approximately a quarter of California’s polling places - 5,000 of 20,000 - will not be ready for use and voters will be forced to vote at a different polling place. This has the potential of creating substantial voter confusion on election day. Further, the sheer number of gubernatorial candidates — there are currently 135 names on the October 2003 ballot — will make operation of the plastic guide substantially more cumbersome to use, potentially compounding the inherent problems in its use....

In addition to the public interest factors we have discussed, we would be remiss if we did not observe that this is a critical time in our nation’s history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. A short postponement of the election will accomplish those aims and reinforce our national commitment to democracy....

A desire for speed is not a general excuse for ignoring equal protection guarantees.”