The Ninth Circuit Court of Appeals is surely one of the most-liberal
and most-reversed courts in the U.S., but that only explains part of
the court's recent decision to delay California's recall election. Both
the California attorney general and the secretary of state played an
important role by leaving completely uncontested the ACLU's claims on
how punchcard machines will result in votes being uncounted. This still
should not have been enough and today's eleven-judge panel from the
same Ninth Circuit seems likely to fix the mistake. Yet, these state
officials' concessions and weak defense of the recall gave the liberal
judges just the excuse they were looking for.
Like many lawyers who concentrate on arguing the law and avoiding
numbers, the California Democratic attorney general's office made vague
general, though plausible, claims that delaying the election will harm
the state. And such a delay will surely produce uncertainty and
continued confusion. This left the judges to choose between a claimed
unconstitutional harm in treating different voters differently based
upon which county that they live in and their guaranteed right under
the California constitution to quickly recall a politician before more
harm is done. The lawyers supporting the recall could have and should
have challenged that tradeoff.
There are a lot of reasons for voters not to vote in all races in an
election. During the 2000 presidential race in California, not trying
to account for any other factors, the average county using punchcard
machines had 1.36 percent of voters using punchcard machines did not
have a recorded a vote for president. The average county without
punchcards did have a lower rate of 1.04 percent.
Assuming that nothing else mattered, simply replacing the punchcard
machines for the six counties that are still planning on using
punchcard machines for the recall election implies about 15,000 fewer
non-voted ballots. A little over one-tenth of one percent of the votes
in the 2000 presidential election would have been affected.
Yet, other factors, such as the age of the population, income,
education, and demographics, do matter in explaining non-voted ballots.
What voting machine is used explains little of whether a voter is shown
as voting for a particular candidate. During the three presidential
elections in 1992, 1996, and 2000, the type of voting machine used
explains a mere 2.5 percent of the difference in this non-voted ballot
rate across counties. African Americans didn't have a statistically
higher rate of non-voted ballots for president in counties with
punchcards or with optical readers or electronic touchscreen voting
But the most problematic punchcard machines are the DataVote ones and,
fortunately, none of the six counties that are planning to use
punchcards will use that type of machine.
Using this additional information, how many extra blank ballots might
there erroneously be due to the punchcard machine still in existence?
Out of every 1,000 voters there will be fewer than one additional
non-voted ballot. Even if as many people vote as voted during the 2000
presidential election, there will be about 10,500 more non-voted
ballots. In other words, fewer than one-tenth of one percent of the
votes will be affected.
Punchcards (and particularly DataVote machines) have potential problems
with the infamous hanging chad, and touchscreen systems also have the
benefit of preventing voters from accidentally voting for more than one
candidate in a race. But touch-screen systems have their own risks. The
machines can be prone to tampering and vote rigging and the very lack
of a paper trail means that officials might never be able to discover
if votes had been correctly recorded. Optical vote readers can also
Not all decisions to abstain from voting for a candidate are a mistake.
Nor are all punchcard machines the same. The "bias" introduced by
different voting machines is not as great as the ACLU makes us believe.
But all this confusion could have been avoided if the California
government attorneys had done their job.
óJohn Lott, a resident scholar at the American Enterprise Institute, is
the author of The Bias Against Guns .
Updated Media Analysis of Appalachian Law School Attack
Since the first news search was done additional news stories have been
added to Nexis:
There are thus now 218 unique stories, and a total of 294 stories counting
duplicates (the stories in yellow were duplicates): Excel file for
general overview and specific stories. Explicit mentions of defensive gun use
increase from 2 to 3 now.