California Recall Ruling Shines Fresh Spotlight on Election Overhaul Funding

For Immediate Release:

September 15, 2003

Contact:Adam Graham-Silverman

CQ

While a federal court decision to delay California's gubernatorial recall election was hailed by congressional Democrats and assailed by Republicans on Monday, some in Washington hoped the decision would provide the impetus for full funding and quicker implementation of last year's election overhaul law.

A three-judge panel of the 9th Circuit Court of Appeals delayed the vote to recall Democratic Gov. Gray Davis, ruling that punch-card ballots used in six counties holding 44 percent of the state's population are prone to error. Similar ballots brought the phrase "hanging chad" to the national lexicon after close scrutiny of their use in Florida in the 2000 election — and led to passage of of the election overhaul law (PL 107-252).

One of the law's sponsors, House Democratic Whip Steny H. Hoyer of Maryland said Congress would have to provide close to $2 billion this year to get back on the funding schedule it promised in last year's law. He said he is working with House Administration Committee Chairman Bob Ney, R-Ohio, to secure "full funding" for the law.

"As the court's ruling today illustrates, it is imperative that the federal government fully fund the election reform proposals," Hoyer said in a statement. "If we fail to do that, then we are failing democracy at the most fundamental level. California's recall postponement must not be a bad omen for the rest of the country in next year's national election."

The law authorized $3.9 billion in federal grants to the states over three years for upgrades to voting equipment, creating statewide voter registration databases and meeting the national election standards. For fiscal 2003, Congress was authorized to provide about $2.1 billion to the states, but instead it appropriated $1.5 billion.

Hoyer said Congress would have to appropriate the money by the end of this year to avoid falling short of the commitments in the law. But both the House and Senate versions of the Transportation-Treasury appropriations bill (HR 2989, S 1589) would provide just $500 million.

Enactment of the law also has been hampered by congressional and White House delays in filling the four seats on the new Election Assistance Commission.

President Bush still must formally nominate the four picks — two from each party — that congressional leaders have already chosen.

The Senate must then confirm the nominations, and the commission would have to hire an executive director and a general counsel before it could begin functioning.

Because of the delays in creating the commission, $833 million in grants to help the states implement their election overhauls — part of the $1.5 billion provided in 2003 — is stuck with no one to distribute it.

The House-passed Transportation-Treasury bill includes a provision that would allow the General Services Administration to distribute the funds to the states until the commission is in place. The Senate bill, however, contains no such provision.

Issa Charges 'Judicial Hijacking'
Under the decision from the 9th Circuit, the recall election, which was set for Oct. 7, would be stayed until March 2, when the state's presidential primary and several ballot initiatives already were scheduled for votes. County election officials had planned to have updated voting systems installed by then. The federal law does not require states to upgrade voting machines, but if they choose to do so, they must have new machines in place by the 2004 election.

Rep. Darrell Issa, the Republican who bankrolled the recall effort, said the court decision was inconsistent and partisan.

"A panel of three liberal judges, all appointed by Democrats, are asking us to believe that the voting systems used last November to elect Gray Davis aren't good enough for an election to remove him from office," Issa said, calling the decision a "judicial hijacking of the electoral process."

Rep. Brad Sherman, D-Calif., who represents part of Los Angeles County, which is among those that still use punch cards, said the court's decision will "have democracy work an awful lot better." In addition to improved technology, Sherman noted that more polling places would be open in March in the state, which had planned to operate a scaled-back number in the October election as a way to cut costs.

The circuit court panel stayed its own decision for a week to allow for appeals. The suit, filed by the American Civil Liberties Union, argued that using a more error-prone punch-card ballot system in some counties but not in others would result in an inconsistent counting of votes. That was a fact the court noted in finding that the election would violate the equal protection rights of voters in counties using the punch card system.

The opinion frequently cited Bush v. Gore, the Supreme Court decision that halted a recount of votes in Florida and clinched the 2000 presidential election for Bush.

"Like the Supreme Court in Bush, we face a situation in which the United States Constitution requires 'some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied,' " the panel wrote.

Sherman noted the similarities between the two cases, though he sounded a more conspiratorial note. "If [presidential adviser] Karl Rove thinks that they can win this thing on Oct. 7 and that's the only time they can win it, then [Justice Antonin] Scalia will do his best to make sure they unravel every doctrine they established in Bush v. Gore," Sherman said.

The panel invoked Bush again in arguing that public interest considerations justified delaying the election even though it could disrupt the plans of some of the 135 candidates on the ballot: "As the Supreme Court put it in Bush: 'The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.' "