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The Occasional Muse September 18, 2003 Is a Recall Delayed a Recall Denied? As you now know, a three-judge panel on the Ninth Circuit Court of Appeals has delayed California's recall election until March. The judges, all appointed by Democratic presidents, cited the punch ballots still used in some California counties, saying they were too unreliable and those voters forced to use them were at a greater risk of being disenfranchised. Referring to Bush v Gore, the judges said this amounted to discrimination. The question, then, is this. Does this ruling, if it stands (which seems unlikely), help or hurt Democratic governor Gray Davis and his Republican foes? Constant readers know I have not yet addressed the California recall issue. That's because, up to now, I haven't considered it any of my business. I don't live in California. If the people there want to toss out their governor less than a year after electing him to another term, that's their business. A recall is constitutionally sanctioned and, from all appearances, recall proponents have faithfully followed the law. But when a federal court gets involved, then it becomes the country's business. Especially when that same federal court declares, in essence, that California's constitution violates the U.S. Constitution. Such a drastic ruling requires the strictest scrutiny and highest judicial standards, and it's unclear the Ninth Circuit appreciated that. It essentially said that the six or so counties still using punch card ballots discriminated against voters, because of the card's error rate. The problem is that all voting systems have errors - we have yet to devise the perfect, error-free voting system. And this same system was good enough to re-elect Davis last year, and now it's not good enough to oust him? This is what they call in the legal schools a crock. Naturally, Democrats applauded this unwarranted judicial intrusion into a lawful and democratic process, as they did when the New Jersey Supreme Court imposed a senatorial candidate that no one had voted for. Democrats only complain when rulings don't go their way, like Bush v Gore. In that case, the court was forced to stop the Florida Supreme Court from re-writing its state's election laws, a job properly left to the state legislature. Democrats love it when courts flout the law because that's the only way they can advance their cause, and hate it when courts enforce the law, because then they lose. The Ninth Circuit cited Bush v Gore as a precedent. But Bush v Gore did not declare the voting system constitutional, it declared the Florida Supreme Court's methods of counting votes unconstitutional. This should be a distinction that a high-ranking federal judge understands. Democrats touted the ruling because they think it will help Gray Davis. Fevers are high and passion is out of control, goes the theory. With the recall now pushed to March, tempers will inevitably cool and the good folks of California will realize what a swell guy is Davis, and he'll handily beat back the recall effort. I'm not convinced. This ruling gives Gray Davis six more months to do what he does best - govern badly. This forces Californians to endure an incompetent and seamy governor - odds are more will hate him in March than do now. Rather than diminish, tempers will likely simmer until they explode in a raging boil in March. Also, the longer a Democrat resides in the governor's mansion in Sacramento, the closer the party is associated with him, and that can't be good for Cruz Bustamante. So this must help Republicans. Yes, but only state senator Tom McClintock. It does not help Arnold Schwarzenegger. To this point, Arnold has offered voters little more than pleasant platitudes. He'll "clean house in Sacramento." Take care of the special interests. Provide everything for the people. Give the government back to the people. Spend lots and lots of money. Bring businesses back so they can pay high taxes. If Arnold were a Democrat, Republicans would be dismissing as just another no-nothing celebrity. Yet Arnold has one advantage: he is a celebrity. All of California, America, and pretty much the whole world knows who he is. Oh, and he's not Gray Davis. Several Republicans and more than a few conservatives support Arnold, only because they think he can win. They love Tom McClintock, who just happens to be sincere, intelligent, articulate, and conservative. But they don't think he can beat Davis or Bustamante. So they want him to drop out of the race so his voters will vote for Arnold. The Ninth Circuit's ruling changes this equation. Arnold will be hard pressed to offer nothing of substance for six more months - pretty soon, he has to give voters some concrete proposals, some other reason to vote for him rather than against Davis. Then he has to sell those proposals. Can he do it? Time will tell, but I'm not optimistic. This extra time gives McClintock opportunity to close the gap between him, Arnold, and Bustamante. He has nothing to lose here - no lead and no grand expectations. He can keep plugging away, offering substance and ideas, giving Californians a reason to vote for him and against Davis and Bustamante and Arnold. So this delay isn't all that bad for Republicans, and it's not all that good for Democrats or Arnold. Who knows - maybe more Republicans will now realize that Arnold really isn't one of them, and that electing a liberal Republican who will govern like a Democrat is no victory.
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