September 17, 2003 - In its Per Curium opinion in Bush v. Gore the Supreme Court enunciated the Equal Protection standard that applies to the citizen’s right to vote in unequivocal and concise language. “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).” http://supct.law.cornell.edu/supct/html/00-949.ZPC.html

While the case before it did not present the question of whether the use of varied balloting systems with differing standards of accuracy it did observe, “This case has shown that punch card balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.”

California has acted upon the Court’s advice, has examined ways to improve the system. Following the 2002 election the California Secretary of State has found the accuracy of the Vote-A-Matic balloting system wanting, decertified the system, and directed that it not be used in subsequent elections. In the normal course of events the 4 California counties in which the system was in use had until the March 2004 primary election to adopted one of the certified systems. Under that time line there was sufficient time for the punchcard systems to be replaced. The Recall petition changed the time line.

Based upon the evidence presented in the trial court US District Judge Stephen Wilson found that the use of the system with its inherit inaccuracies diluted the weight of the votes of citizens residing in those counties. Despite that he held that the State’s interest in an expeditious resolution of the Recall issue overrode the citizen’s right to Equal Protection of his vote. The Ninth Circuit panel found the evidence presented in the record sustained Judge Wilson’s analysis of the evidence but that State’s interest in expedition could not override the citizens’ Equal Protection right to an undiluted vote.

Stripped of the legalese, the issue that will be addressed by either the Ninth Circuit sitting en banc or the US Supreme court is whether the Recall election will be conducted now requiring 44% of the citizens of California to use a balloting system that is shown to be inaccurate or will it be conducted in March using a more uniform system that is free of the Constitutional infirmity.