“We would be remiss if we did not observe that this is a critical time in our nation’s history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. A short postponement of the election will accomplish those aims and reinforce our national commitment to democracy.”

— 9th U.S. Circuit Court of Appeals, Southwest Voter Registration Education Project v. Shelley, September 15, 2003.

That was the extraordinarily odd concluding paragraph of the even odder decision yesterday by a panel of three of the judges who ride the 9th Circuit for the United States Court of Appeals. Made up of two appointees of President Clinton and one of President Carter, the panel proclaimed that the voting machines good enough to re-elect Governor Davis in 2002 now are not up to the task of tossing him out this October. Not all observers were shocked. The Ninth Circuit has a reputation for partisanship and judicial activism, not to mention flakiness.

The nub of the Ninth Circuit’s argument seems to be that since different counties in California use different voting technologies, which have different rates of error, all people’s votes are not being weighted equally — triggering concerns under the Equal Protection Clause of the 14th Amendment. Specifically, the court is worried about the error rate of punch-card voting machines in some counties, which, according to the court, have a propensity for error of about 2%, versus newer technologies that have shaved that number down to about 1%.While the court’s concern for accuracy is admirable, the prospect that a difference in voting-machine performance from county to county could postpone a state election must chill the bones of voters from coast to coast. What hell of election challenges does the Ninth Circuit seek to ignite?

Aside from its disregard for the practicality of the standard it is trying to erect, the circuit riders of the Ninth are positively disdainful of the California Constitution. The court notes that the state’s constitution requires a recall election to be held between 60 and 80 days after it is certified, but nonetheless suggests postponing it until the March 2, 2004, regular election — conveniently enough, the day of the Democratic presidential primary. It’s all too pat for us.

“Just as the black and white fava bean voting system of revolutionary times was replaced by paper balloting, and the paper ballot replaced by mechanical lever machine, newer technologies have emerged to replace the punch-card, including optical scanning and touch-screen voting,” the court wrote. Yet no part of the Constitution mandates the use of the latest technology. All of the counties that have punch-card machines, which include Los Angeles, San Diego, and Sacramento, have cast their lot. No one is in the dark about punch-card ballots, hanging chads notwithstanding. In the end, Californians — and emerging nations overseas — will see that the real threat to California democracy is coming from the 9th Circuit.