Recall ruling is fun, but that doesn't make it political

It often seems that the purpose of California politics is to provide entertainment for those who don't live there.

By this standard, Monday's decision by a panel of three federal appeals court judges to postpone the California recall election is good news on par with discovering that your favorite TV show has been renewed for another season. Reflecting the uncertainty that surrounds all things California, that decision is now slated for review by the full appeals court. But if the California vote is postponed until March 2, when it would coincide with the state's presidential primary, Americans will have nearly six months to watch Arnold Schwarzenegger try to master the role of appearing to be a gravely serious gubernatorial candidate.

The recall election, originally scheduled for Oct. 7, was unfolding at too rapid a pace for outsiders to savor the political drama. In less than three weeks, Arnold might have become a sitting Republican governor forced to grapple with a gaping budget deficit and the Byzantine legislative politics in Sacramento. How boring. Equally yawn-inducing would have been watching the non-charismatic Gov. Gray Davis survive the recall or seeing the Austrian-born body builder's political career terminated by Lt. Gov. Cruz Bustamante.

Federal courts, of course, do not factor in the fun quotient in rendering their decisions. But neither are they motivated by the crude political calculus that some Republicans claim was behind the decision on postponing the recall election. Typical of the overheated rhetoric were the charges made by GOP California Rep. Dana Rohrabacher on MSNBC's Hardball: "We know the three folks who made this decision were all appointed by Democrats. ... These people can't get over the fact that we live in a democracy, that the will of the people means something."

Actually reading the unanimous federal appeals court decision, rather than fulminating against it, leads to the opposite conclusion. The pivotal argument set out in the first paragraph of the decision is that the California secretary of state called punch-card voting machines — slated to be employed by 44% of the state's voters on Oct. 7 — "unacceptable" and banned their use in future elections. The three-judge panel also pointed out that California law permits the state to wait as long as six months to hold a recall election and that the recall organizers had originally expected that the vote would be March 2.

"You could argue that the federal courts should be more involved in process questions like this and less involved in striking down policy decisions made by a fair political procedure," says Garrett Epps, a professor of constitutional law at the University of Oregon. In Epps' view, the appeals court decision was narrowly rendered to deal with a unique situation: an election in which some voters would cast their ballots on machines that have been proved to be less reliable than others.

Connoisseurs of political irony may note that the appeals court frequently cited the Supreme Court's reasoning in Bush vs. Gore that decided the 2000 election. Since leading Democrats from Bill Clinton to the presidential candidates frequently win cheers from partisan audiences by implying that the 2000 election was stolen by the Supreme Court, it is inevitable that the California decision will be seen as political payback.

What conspiracy-minded Democrats forget is that George W. Bush almost certainly would be in the White House right now even if the Supreme Court had not ruled. Not only was Bush leading in the Florida recount, but also almost all the relevant political actors (the governor, the Legislature and the U.S. House of Representatives) were Republican. Even without the Supreme Court verdict, the odds were small that Al Gore ever would have prevailed in Florida.

But Bush vs. Gore created a climate in which all court decisions affecting elections will be excoriated by the losers as politically motivated. At a time of poisonous partisanship in Washington over judicial selection, it is unfortunate that we have lost our collective faith that legal principles govern the operations of the federal court system. Yet it is inconsistent for Republicans to argue that Bush's judicial nominees are above politics but then to attack the three-judge panel in the recall decision for having all been appointed by Democratic presidents.

If the California recall vote is held on March 2, the same day as the presidential primary, it will put national leaders of the Democratic Party in an awkward position. Until now, Democrats such as party Chairman Terry McAuliffe have expressed the hope that the spate of February primaries will produce an early verdict on the party's presidential nominee. But if the California primary became meaningless, that would depress Democratic turnout. A hotly contested presidential battle in California would aid Davis in keeping the governorship, but it would also risk creating lasting enmities that would jeopardize the Democrats in the race against Bush.

Complicating the political calculus is the looming Supreme Court decision on the constitutionality of the 2002 campaign-reform bill. Judging from oral arguments earlier this month, it seems unlikely that this landmark legislation will survive judicial review without modification. But if the Supreme Court voids part of the law, it is quite possible that we could end up with a campaign-finance system that is impractical. After all, back in 1976 the high court ruled that wealthy political aspirants could spend as much of their own money as they wanted but upheld a $1,000 limit on contributions to candidates who could not finance their own campaigns.

But these are the risks that come with our political system that grants the federal judiciary the necessary power to serve as the arbiter of fair elections.

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