Editorial for Wednesday — September 17, 2003

• Let the voters decide

Let the voters decide

A federal appeals court took a confusing situation and made it chaotic Monday by barging into the middle of California’s recall election and ordering a postponement three weeks before election day. The decision is a serious blunder that should be quickly reversed.

Three Democratically-appointed judges on the 9th U.S. Circuit Court of Appeals went out on a limb by upsetting almost everyone’s expectation that the recall of Gov. Gray Davis would go forward Oct. 7 as ordered by state officials in compliance with California law. The judges risk validating the conservative critique that federal judges in California are liberal activists.

Voters’ rights are important, and the recall process is flawed. But a federal court has no business rewriting the rules at the last minute on the theory that some voters might be disadvantaged by the vote. The court said that as many as 40,000 voters could be disenfranchised because of the deficiencies of antiquated, punch-card technology. The margin of victory in the recall could be less than 40,000, which might throw California into Florida-style turmoil. The judges noted that one-fourth of the polling places would not be ready Oct. 7, requiring voters to go to unfamiliar polling places.

The court seems intent on forcing the U.S. Supreme Court to swallow a dose of its own bitter medicine in Bush v. Gore, saying the issue in California is almost identical to the highly controversial decision that settled the 2000 election. The court ruled in Bush that equal protection requires that votes in one county be counted the same as votes in another. In California, votes in Los Angeles, which are tabulated by the old, error-prone methods, won’t count the same as those in San Francisco with the new methods, the court said. That hurts minorities, who are more numerous where the old methods are used.

But the court was off base in minimizing the importance of carrying out the recall in conformance with the state constitution, which requires a vote within 80 days after petitions are certified. The court said it was wrong to equate this state interest with the public interest, an argument unlikely to fly among the states’ rights justices on the Supreme Court.

It’s far from clear who would benefit from delaying the election until March. Mr. Davis is rebounding in the polls and Democratic Lt. Gov. Cruz Bustamante leads his GOP opponents. What is clear is that California would be better off if, instead of protracting the turmoil, the courts got out of the way and let voters end it.

St. Louis Post Dispatch