Richard L. Hasen
Richard L. Hasen
With so many American elections now ending up in the courts, election law is fast becoming a focus of intense attention, and that means Loyola Law School Professor Richard L. Hasen's phone is ringing off the hook. Since the courts interrupted the recall at about the 10th hour, Hasen's all over talk radio one minute, The New York Times the next, then writing an opinion piece for the Los Angeles Times. He's an election-law expert with a participant's view of the action.
Hasen filed an amicus brief in support of the American Civil Liberties Union's case against the California Secretary of State, which stopped the recall. He argued that Bush v. Gore, the landmark Supreme Court case that settled the 2000 presidential election, applies to the recall's uneven use of antiquated and often error-prone “punch-card” ballots. “Bush v. Gore is without doubt the closest case on point to the facts of the case … ,” he writes. “Bush was the first case considered by the Supreme Court raising an equal protection claim related to the ‘nuts and bolts' of election mechanics. This case raises a very similar ‘nuts and bolts' question.”
Hasen's argument became central to the case, and when a three-judge panel put the brakes on the October 7 recall this week – leaving wiggle room, however, for appeals – it cited Bush v. Gore as its main motivation. Just as attorneys for Bush argued that a recount of less-than-reliable punch-card ballots would be unfair, the panel stated unfairness would also result in an October recall where such ballots would be used at some polling places and more accurate methods would be employed elsewhere. The panel put off the election until punch- card ballots could be replaced with “touch screen” voting machines – likely in March. The full Ninth Circuit Court of Appeals asked to review the case, however, and an 11-judge panel will likely soon issue a ruling. The case could concurrently go to the U.S. Supreme Court, where Hasen's arguments would no doubt ring once more.
A graduate of UCLA School of Law, Hasen clerked for a Ninth Circuit judge and earned a Ph.D. in political science. He writes a very popular web log (electionlaw.blogspot.com), and is also right on time with his forthcoming book, The Supreme Court and Election Law, which is due to start shipping next month.
– Dennis Romero
CityBeat: Do you use issues brought up by the recall in any classes you teach? What do you tell students?
Richard L. Hasen: Not this semester, because I'm not teaching election law this semester. But I will use it next semester. Before Bush v. Gore, students thought “hanging chads” were the most boring thing in the world.
Why was the ruling so unexpected, and were you surprised?
I wasn't surprised at all. I was at the oral arguments, and I didn't think it would have turned out any other way. It was clear then that two judges were already in favor of the ACLU. Before that, people thought the case was over, but it's still not over.
You seem to think the Supreme Court won't overrule the Ninth Circuit delay. Why?
I'm not sure what they will do. We were all wrong in Florida [during the 2000 presidential election] in predicting what the Supreme Court would do. But I think there are lots of reasons why they would choose not to get involved. One is, the stakes are lower here. It's not a national election. It's serious, but not of the same magnitude as the presidential election.
You urge judicial restraint on the part of the Supreme Court when it comes to election law. Do you think it will take up your advice?
Ever since Bush v. Gore, the court has not hesitated to get involved in election-law disputes. This one is a little different, in that it's coming in the middle of an ongoing election. The court might be a little wary to get involved.
Why did it take so long for this ruling to happen?
It didn't take that long at all. It was actually briefed very quickly. They issued an opinion Monday morning after hearing the arguments on Thursday. Part of the problem is that it's a short election.
Is the number of possible lost votes cited by the ACLU – 40,000 – reasonable or supported by good science and research?
You can read Dr. Henry Brady's declaration in the case. He's a very well-respected social scientist at UC Berkeley. He shows very strong statistical evidence. It's a very reasonable figure.
Did Bush v. Gore have precedential value, or was it intended as a one-case-only ruling, as some argue?
Ultimately, the Supreme Court may decide it doesn't have precedential value. But meanwhile, lower courts have to take it at face value. I had written well before the recall, using the punch-card example as my easy case, that if Bush v. Gore applies anywhere, it will apply here in the recall. In that ruling they said local elections have many complexities, but they had very broad values, and the opinion was murky. This gives lower courts license to experiment broadly. We'll see how it will be read in the future.
Is there some irony in the Ninth Circuit's citation of Bush v. Gore, which went the Republican president's way, in a recall delay that could ultimately favor a Democratic governor?
People have pointed this out. The bigger irony will be if the Supreme Court will be asked to decide if it has any precedential value. I think liberals will be relishing that.
You've said Supreme Court Justice Sandra Day O'Connor is unpredictable when it comes to election law. What's your best prediction of what she might do?
If the Secretary of State's request for a hearing goes to her, she might refer it to the whole court. On these larger cases, it will likely be referred to the entire court. We'll get a good sense that they will reverse if they decide to take the case.
In their ruling, the Ninth Circuit judges talked of “equal treatment.” Would it be different if punch cards were used in every polling place in the state?
If punch cards were used throughout the state consistently, it wouldn't present the same kind of problem. There's a systematic disparity here.
What do you think will become of the absentee ballots?
It's a very interesting question. The issue is: Is the election frozen in time, or is it somehow going to restart the clock?
What does the law say about reopening the ballot to additional candidates?
It's the same kind of argument, whether we freeze the election or start over.
Is there any evidence that voter education could correct some of the problems with punch cards?
The evidence is exactly the opposite. After 2000, with the Florida fiasco, there was a great education effort in Los Angeles and elsewhere – “check your chad” – but the error rates actually went up.
Could having the recall tied up in court have been avoided?
It's unfortunate it's come to this. The problems were pretty inevitable, however. We had a 90-year-old statute and antiquated voting technology, and these things came to a head. It would have been nice to address them under cooler circumstances. But we all need to take steps to ensure that every vote counts.
Published: 09/18/2003
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