September 17, 2003
"The Vote Must Go On"--An Op-Ed by Prof. Bruce Ackerman
(This essay originally appeared in the September 17, 2003, edition of the New York Times.)
The Vote Must Go On
By Bruce Ackerman, Sterling Professor of Law and Political Science
The federal appeals court order delaying the recall election in California cites the Supreme Court's decision in Bush v. Gore more than a dozen times. It is undeniable that California's recall election, which will use punch-card voting systems, has the potential to become another voting fiasco replete with hanging chads and changing standards. But this is not nearly enough to make it a legal rerun of Bush v. Gore.
For starters, in 2000 the Supreme Court intervened only after the election. Its decision came too late to distort the actual conduct of the election campaign. In the run-up to November, George Bush and Al Gore shaped their political appeals to the voters in blissful ignorance of the crisis ahead. The court was thus able to focus on the question of equal protection in the recount without worrying about its decision's impact on crucial constitutional values of political speech.
This time around, the candidates in California have already invested heavily in a short campaign. Their competing strategies have been designed to reach a climax on the Oct. 7 election date. If they had known they would have to compete until March, they would have conducted their campaigns very differently. By suddenly changing the finish line, the three-judge panel of the United States Court of Appeals for the Ninth Circuit disrupts the core First Amendment freedom to present a coherent political message to voters.
Worse yet, the decision disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort. State law promised them a quick election if they completed their petitions by an August deadline. Now their effort will have to compete in March with the candidates for the Democratic presidential nomination. A campaign focused on California issues may be swamped by national politics.
All of these concerns make the present case far more complex than Bush v. Gore. Three years ago, the Supreme Court had the luxury of focusing narrowly on the vote count and the extent to which it violated principles of equal protection. In contrast, the appeals court was also obliged to place the First Amendment freedoms of the candidates and the public into the balance. Unfortunately, the court's opinion doesn't even recognize the existence of this constitutional problem.
The decision departs from Bush v. Gore in a second way. When the Supreme Court stopped the recount, Florida's time was running out. Continuing the recount increased the risk that its electoral vote would be challenged in Washington when Congress counted all the electoral ballots. Whatever its other merits or demerits, the court's intervention protected the right of each state to make its voice heard in selecting the president.
In contrast, the present decision attacks states' rights at their very core. The short election period is central to California's political integrity. Its constitution places a limit of six months on this extraordinary process. By extending the election beyond this period, the court condemns the state to an extended period of political paralysis.
While California's punch cards are obsolete, they have worked well enough for decades. And while there is a chance of fiasco this time, there is a certainty of a widespread disruption of precious First Amendment freedoms. Instead of delaying the vote, the court should have focused on more concrete problems. For example, it could have ordered the state to open more polling places in heavily minority areas.
There is one consolation. The panel stayed its decision for a week to allow for reconsideration, either by the full Ninth Circuit or the Supreme Court. In either case, the court should make it plain that Bush v. Gore is not an invitation for an endless series of judicial interventions into the very heart of our political life.
Bruce Ackerman, professor of law and political science at Yale, is editor of "Bush v. Gore: The Question of Legitimacy."