At 12:55 PM 9/23/2003 -0400, J. J. Gass wrote:

I'm sure there will be more momentous and probing comments about this decision, but I was intrigued by one paragraph near the end:

"We must of course also look to the interests represented by the plaintiffs, who are legitimately concerned that use of the punch-card system will deny the right to vote to some voters who must use that system.  At this time, it is merely a speculative possibility, however, that any such denial will influence the result of the election."

What is the court suggesting ought to be done at some other time if it turns out that the election's outcome is affected by the uneven miscounting of votes in different counties?  I think the answer should be "nothing," for reasons that Prof. Hasen has been outlining for quite a while.  If you're going to try to fix a problem like this, it is much better to do it in advance than after the votes have been cast.  Perhaps the balance of the hardships does favor going forward with the election even if there's a possible constitutional violation; but if the election ends up turning on miscounted votes and the court decides to get involved at that time, it's hard to imagine anyone thinking it wouldn't have been better to deal with the issue in advance.

For some examples of cases where new elections were ordered, see pages 1039-46 of The Law of Democracy.  It's rare, for obvious reasons, but it occasionally does happen.  (And in the strange coincidence department, the only really thorough article we could find on setting aside elections was written by then-obscure Ken Starr.)


Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
karlan@stanford.edu
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