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. Last Updated: 07/27/2016

Recall Vote Revisits Election History

WASHINGTON -- Just last February, Supreme Court Justice Ruth Bader Ginsburg, a dissenter in the historic 2000 election case that handed victory to U.S. President George W. Bush, told a law school audience in San Diego that Bush vs. Gore was a "one of a kind case," adding: "I doubt it will ever be cited as precedent by the court on anything."

But a three-judge panel of the San Francisco-based U.S. Court of Appeals for the Ninth Circuit essentially said its legal fallout is not so easily contained.

In a 66-page opinion, the panel, made up of Judges Harry Pregerson, Sidney Thomas and Richard Paez, cited Bush vs. Gore repeatedly to support the view that California's Oct. 7 gubernatorial recall election would be unconstitutional if the state, as planned, used outmoded punch-card ballot machines like those that contributed to the deadlock in Florida in 2000. The punch-card technology would deny millions of Californians their constitutional right to have their ballots counted fairly, the court ruled.

If the panel ruling is not reversed by a larger Ninth Circuit body, the Supreme Court justices, for whom the stress and strain -- both personal and institutional -- of 2000 are still a fresh memory, will face a choice. They can stay out of the California case and risk permitting what they may view as a debatable interpretation of Bush vs. Gore to stand, or they can plunge in and assume the risk that they will once again be criticized for partisanship no matter what they decide.

Bush vs. Gore held for the first time that the constitution's equal protection clause, which protects citizens from arbitrarily disparate treatment at the hands of state authorities, can be applied to the methods states use to tally votes. Previously, election methods were mostly the province of state officials.

The court ruled that a statewide manual recount ordered by the Florida Supreme Court to account for uncounted punch-card ballots would be conducted according to wildly varying rules, making it impossible for the state to treat everyone equally within the short time available.

For the liberal interest groups and lawyers who have been fighting California's recall, Bush vs. Gore has mutated from reviled electoral coup to legitimate legal weapon.

If the case means anything, they argue, it means that the constitution forbids states from arbitrarily counting different voters' ballots differently. That includes setting up an election in which one technology, the punch-card machines, would subject a sizeable percentage of voters -- among whom are a disproportionate number of minorities -- to a greater risk of having their ballots discounted than other voters.

For all its conclusive impact on the Florida recount, the Supreme Court's majority opinion ended on a note of ambivalence. Protesting that their involvement was an "unsought responsibility," the majority -- made up of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas -- said the decision was "limited to the present circumstances."

The Ninth Circuit panel just blew by that admonition, some legal analysts say. "It over-read Bush vs. Gore," said Vikram Amar, a professor of law at the University of California San Francisco. "You can't say it's quite identical, because Bush vs. Gore involved manual recounts, not machine mistakes."