Again, courts take electoral driver's seat

Are judges becoming indispensible to winning American elections?

The decision by a federal appeals court panel invalidating the Oct. 7 California recall election three weeks prior to the vote has given new momentum to a long-running debate over the proper role of judges in cases where the law and politics collide.

Inevitably, the losing side cries "judicial activism" and the winning side trumpets "smart lawyering." But some analysts are questioning whether elections shouldn't be left to voters to decide rather than judges and justices who are not elected.

"Increasingly, judges are putting hands on where the old rule used to be hands off," says Larry Sabato, a political science professor at the University of Virginia. "Just as the judiciary hesitated at one time to interfere with legislative and executive decisions unless they had to, so, too, did they try to leave the electoral process to the people."

But that deferential posture appears to have changed in the wake of the US Supreme Court's intervention in the 2000 presidential election that morphed into a legal case - Bush v. Gore. The postelection brawl prominently featured first the liberal Florida Supreme Court and then the conservative US Supreme Court setting vote-counting rules in Florida that might ultimately determine the final outcome. Since the US Supreme Court got the last bite at the apple, it literally exercised the power to ensure victory for George W. Bush.

A similar dynamic was at play during the 2002 New Jersey Senate campaign, when the Supreme Court of New Jersey adopted a generous reading of state election law to allow Democrat Frank Lautenberg to replace the struggling Robert Torricelli after the deadline for such maneuvers had passed. Whereas it intervened in Bush v. Gore, the US Supreme Court declined to enter that political battle.

Now, three federal appeals-court judges, each appointed by Democratic presidents, have derailed a Republican-engineered effort to replace California Gov. Gray Davis.

To the delight of Democrats, still smarting over the high court's Bush v. Gore decision, the three-judge panel cited the equal-protection reasoning in Bush v. Gore to strike down the recall election.

"Plaintiff's claim presents almost precisely the same issue the [Supreme Court] considered in Bush, that is whether unequal methods of counting votes among counties constitutes a violation of the equal protection clause," the federal appeals court panel writes.

The court says that punch-card ballots, used in six counties, have an error rate 2-1/2 times higher than other kinds of voting machines used in the state. The appeals court says that would mean that 40,000 votes in those six counties with a high proportion of minority voters would not be counted.

Since all voters in California have a right to have their votes counted, the use of such a system violates equal-protection principles of the Constitution, they ruled.

Legal analysts are divided over whether the appeals court got it right. Some say the decision is a logical extension of the equal- protection grounds laid out in Bush v. Gore. Others say the court overreached in trying to equate the Florida case with California's.

In Florida, the issue was whether counties, all using punch-card ballots, could adopt different ways of counting dimpled or other chads as valid votes. In contrast, the California case involves a claim that punch-card ballots are unconstitutional because they have a higher error rate than other types of voting machines used in other counties.

"It is a plausible reading of Bush v. Gore, but I don't think it is the best one," says Abner Greene, a law professor at Fordham University School of Law.

"The problem in California is strictly mechanical, which is a problem that should be fixed, but whether it violates the equal-protection clause of the Constitution is another matter," he says. "I would argue it doesn't."

The next step is an appeal, but it remains unclear whether the nation's highest court is willing to jump once again into the political fray.

"These justices have just weathered the most intense period of criticism in the court's history. They were accused of being political," says Jonathan Turley, a law professor at George Washington University.

"In Bush v. Gore, some of these justices adopted reasoning that seemed to run against prior holdings," Mr. Turley says. "This is one of those cases now where more cautious minds" might want to take a pass.

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