Justice Deserts

There's separation of powers for you. Just when Democrat Gray Davis looks like he might survive the October recall, along come three Democratic-appointed judges to postpone the vote.

Monday's decision by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit didn't merely scramble the already jumbled electoral situation in California. It was also a direct challenge to the Supreme Court's Gang of Five, the justices who plunked down George W. Bush in the White House three years ago with their ruling in Bush v. Gore.

Now the 9th Circuiters have called Bill Rehnquist's bluff. Did he really mean all that stuff about extending the equal protection clause to voters who stood a greater chance to be disenfranchised by the absence of a uniform standard of counting votes? Was he really concerned about the tabulation disparities between one county and the next? Or was Bush v. Gore just a one-time-only decision crafted to elect a Republican president?

"Plaintiffs' claim presents almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause," the three judges wrote. "In Bush, the Supreme Court held that using different standards for counting votes in different counties across Florida violated the Equal Protection Clause."

Before the recall was a gleam in any Republican's eye, former California secretary of state Bill Jones had already agreed to end the disparity in California vote counting by ordering counties to eliminate their punch-card voting machines by next March's primary. Monday's decision pushes the recall vote back to March, despite a state law that calls on the state to hold a recall within 60 to 80 days of certifying the signatures. To justify this move, the appellate judges twice quote the same passage in Bush: "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal process guarantees."

In short, three 9th Circuit judges are asking the Supremes to apply their application of the equal protection clause equally, even when the likely beneficiary of such a decision is -- oh, the horror -- a Democrat. What's at stake -- to quote Justice John Paul Stevens's mighty dissent in Bush -- "is the nation's confidence in the judge as an impartial guardian of the rule of law."

In California, recall opponents are prepared to make the most of that lack of confidence among Democratic voters should the Supreme Court reverse the three-judge panel's ruling. (The case will be heard first by the 9th Circuit, meeting en banc.) "We've been down this Supreme Court route before, so we're continuing to go full blast with our [voter mobilization] campaign," says Miguel Contreras, head of the Los Angeles County Federation of Labor and architect of the nation's most successful Democratic get-out-the-vote campaigns over the past decade. If the Supreme Court overturned the decision, says Contreras, it "would give us an issue with Democratic voters: There they go again, the Supreme Court playing partisan politics."

Delaying the vote until March would immediately confound the calculations of all Davis' challengers. The two front-runners, Cruz Bustamante and Arnold Schwarzenegger, have been speed-skating on thin ice, hoping to reach the finish before their weaknesses become so apparent that they're plunged into the briny deep. Bustamante's dependence on tribal casinos for virtually all his funding has already rocketed his negatives up to 50 percent in the latest Los Angeles Times poll, and extending that dependence for five more months might render him nearly as unpopular as Davis.

In a campaign slated to run just three more weeks, Schwarzenegger has plainly been hoping that he can continue to duck behind the scenery whenever the press looms menacingly to ask him just what he would do as governor. Five more months of hiding under rocks would make Arnold look sillier still, if such a thing is possible.

Schwarzenegger's GOP rival, Tom McClintock, would have to simultaneously defend his state Senate seat in the March primary, and would surely face a furiously well-funded Republican senatorial opponent if he had the temerity to stay in the governor's race, too. Arianna Huffington would run out of both money and free media.

By contrast, shifting the recall to coincide with the Democratic presidential primary in March would clearly help Davis. Then again, if an initiative to overturn the law he just signed granting driver's licenses to illegal immigrants were to qualify for the March ballot, that could cancel out almost any Davis advantage. The white backlash that is already an implicit factor in the recall campaign would become an explicit factor shaping an electorate that would not be Davis-friendly. All in all, moving the vote to March might prove little better than a wash for Gray.

That move may soon be the Supreme Court's to affirm or overturn. And in that case, "There's no way to reverse [the decision] and not make Bush v. Gore into a laughingstock," says Mark Rosenbaum, the ACLU attorney who argued the case before the appellate judges. But that has not deterred this court before.

Harold Meyerson is editor-at-large of the Prospect.

This column originally appeared in yesterday's Washington Post.

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