Writing in the Wall Street Journal, Harvard Law Professors Einer Elhauge and Laurence Tribe took opposing views of the recent Ninth Circuit Court decision to delay the California recall until the punch card voting systems used in some California counties could be replaced.

Elhauge, in Wednesday’s edition of the Journal, argued that the decision relied on a false interpretation of the U.S. Supreme Court’s ruling in Bush v. Gore:

“… Bush v. Gore never rested on such an equal protection theory. It couldn’t have, because that decision sustained a machine recount despite the fact that some Florida counties used punch cards and others used optical scanners…. Instead, Bush v. Gore expressly stated that the issue there was ‘whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.’ It stressed that, there, the standards about whether to count a dimpled or partially perforated ballot varied not only between counties but within counties over time and between different counters.”

In the next day’s Journal, Tribe countered that there is, “palpable hypocrisy in the complaints one hears about the Ninth Circuit Court of Appeals’ decision in the California gubernatorial recall.” He went on to observe that, “people moaned and groaned about a hanging chad here and a dimpled chad there in Florida in the election of 2000 and succeeded in getting the federal judiciary to throw away thousands of ballots still uncounted as of an arbitrary date …. But these same people now treat as trivial or as merely speculative the far clearer and greater disparities between the parts of California…”

Tribe, who serves as co-counsel for the parties challenging the California recall procedure, concludes that the Ninth Circuit made the right decision: “In short, this case is about enforcing the bedrock guarantee of equality in the right to vote — not about delaying an election, much less negating its outcome after the fact. And it is about the unwillingness of some to abide by the same rules in California today that they pressed in Florida three years ago.”

Rewire This Circuit by Einer Elhauge (The Wall Street Journal, 9/17/03)

The Ninth Circuit Got It Right by Laurence Tribe (The Wall Street Journal, 9/18/03)