Recalling Gore v. Bush

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Yet three plucky judges on the Ninth US Circuit Court of Appeals did just that on Monday - even with the possible perverse effect of delaying California's recall election until March.

But despite adding to the recall election's circus-like atmosphere, the judges did a service by citing the Supreme Court's decision in the Florida ballot recount that gave the White House to George Bush. Now the nation's highest court may be asked to clarify its groundbreaking reasoning in that 2000 decision.

The Supreme Court, citing the 14th Amendment to the Constitution, found that Florida could not provide "equal protection" in a recount with so many different standards for judging hanging chads and other irregularities in a punch-card ballot system.

The Ninth Circuit's judges took that reasoning a step further, perhaps too far. They said California erred in letting six of its counties use punch cards for this election, claiming the error rate could be higher than with newer voting systems the state has been phasing in. (Note: Their judgment came before any errors had been made, in contrast to the Florida case.)

The question for the Supreme Court is this: How perfect should voting be, given that some voters will always make mistakes and no election system is perfect? The courts must define a reasonable standard in voting - otherwise every aggrieved group will claim that even the smallest risk of someone not voting correctly is an excuse to upend an election.

The burden to make voting easy and accurate falls on local election officials, but both the 2000 decision and now this one have opened up an endless quest for balloting perfection: one that can be too easily manipulated by either side before or after an election.

Defining an acceptable error rate in voting won't be easy, and given the perception of a politicized judiciary, the task won't be an easy one for the Supreme Court.