"Recall Radio" Attacks Appeals Court Challenge

by Robert Gelfand

I checked the batteries in my radio, collected mass quantities of coffee and carbohydrates and settled in for the afternoon. In this column, I have been following the progress of the John & Ken show (KFI 640 AM, Los Angeles, 3 - 7PM weekdays) and that's where I set the dial.

The United States Court of Appeals for the Ninth Circuit had earlier that day granted a preliminary injunction to halt the October 7 election. This decision may be reversed (or not) as early as this week, when a larger group of judges from the same Ninth Circuit will reconsider the case.

Meanwhile, how would John and Ken react?

The bulk of the nearly four-hour show consisted of unrelenting attacks that weren't directly aimed at the governor, but mainly at the American Civil Liberties Union (ACLU) and the federal judiciary. Disclosure here: I am a card-carryimng member of the ACLU.

The reason for attacking the ACLU is probably this simple: The ACLU had represented a collection of plaintiffs in the lawsuit that includes the Southwest Voter Registration Educational Project, the Southern Christian Leadership Conference of Greater Los Angeles and the National Association for the Advancement of Colored People -- in other words, the preeminent civil rights organizations and a formidable group to kick around. The ACLU is a safer target.

The reasoning in the court's decision can be summarized with only a little oversimplification: It begins by noting that California's former Secretary of State Bill Jones had already declared the punch card voting system to be flawed and unacceptable. In response to a 2002 lawsuit by Common Cause, he entered into a consent decree that mandated replacement of the old punch card systems by newer systems in time for the March 2004 elections. This decision is binding on the entire state.

The court pointed out that the use of the punch card voting system would present unacceptable dangers of counting errors in the election. Several lines of evidence and argument were advanced.

It was pointed out that a 1975 study by Ray G. Saltman of the United States National Bureau of Standards found that the punch card system is prone to mechanical errors. Saltman filed an updated report in 1988 which continued to be critical of punchcard voting technology.

The court noted that counting errors may occur for various reasons -- cards may stick together, be damaged subsequent to being used by the voter, may yield a different result when recounted, or may have miscalibrated pre-scoring (the grooves that allow the hole to be punched).

The court observed that six California counties have not finished replacing their old systems and further noted that the six counties contain a high proportion of the state's minority population, which would disproportionately subject minority votes to counting errors.

It also pointed out that the inclusion on the October ballot of Proposition 54, a proposed law that would forbid the state from collecting ethnic data, is of particular interest to minority voters. Thus, in respect to this proposition, minority voters could be particularly harmed.

The court's argument may invite argument and rebuttal, but it does go directly to the question as to whether or not some part of the voting population may suffer disproportionately due to selective use of an obsolete technology. As such, this limited argument might be enough to grant the preliminary injunction. The court and the ACLU went a little further however, and the talk radio universe has seized on an extraneous issue to mount its attack.

The issue centers around a study carried out by Dr. Henry Brady, a faculty member in the Political Science Department at the University of California, Berkeley. The court's decision states, "Dr. Brady analyzed the differences in residual voting rates (i.e., uncounted votes) in counties using pre-scored voting systems and those that did not, and concluded that the probability the differences occurred by chance was less than one in a billion."

The next paragraph in the court's written opinion is the crux of the talk radio furor: "Dr. Brady also concluded that the use of pre-scored punch card voting systems discriminated against minorities in several respects. First, the six punch card counties have a larger percentage of minorities (46%) than non-punch card counties (32%). Second, the analysis indicated that when pre-scored punch card systems were used, minority voters had significantly higher residual vote rates than non-minorities."

The written decision went on to cite more recent evidence, in particular the July 2001 Report of the Caltech-MIT Voting Technology Project, which found that the number of votes lost by counting punch cards is significantly higher than the loss from optically scanned paper ballots. The court quotes the Caltech-MIT Report directly: "These patterns hold up to closer statistical scrutiny, holding constant turnout, income, racial composition of counties, age distributions of counties, literary rates, the year of a shift in technology, the number of offices and candidates on the ballot, and other factors that operate in a county or in a particular year."

In other words, a report from the nation's most respected technical university supports the notion that punch card technology is significantly inferior to other voting systems, a conclusion that does not depend on racial or ethnic differences -- quite to the contrary, it would appear.

Taken together, the court's argument is that the punch card system is worse than other systems, that voters in six California counties will be unfairly treated by having to use this system, that minority voters are disproportionately represented in those counties, and therefore that the balance of justice tips towards postponing the recall election until March 2004, when the old system will have been replaced. The court's decision briefly notes Henry Brady's arguments (but not until page 25) that minority voters are more likely to make technical mistakes in using the old system, but by immediately citing the Caltech-MIT Report, seems to imply that this is not a central point.

You would have thought it was a different verdict and a different court by tuning in to the John & Ken show last Monday. The hosts obsessed loudly over the discussion about minority voter errors. They loudly and repeatedly accusing the ACLU of saying that minority voters are "too stupid" to use the punch card voting system.

Here is a small sampling from the John & Ken Show from Monday, September 15: (John speaking): "If that's the argument, then why doesn't the ACLU say, here's why black and brown people can't punch a hole through a card. Here's why black and brown people get lost and confused easily. The judges should explain this. I heard Erwin Chemerinsky the law professor carrying on on the radio today, about how unfair it was to minorities. Well what is it then? Is it that they have small brains? Explain your racism here. And why isn't anybody calling them on this? It's absolutely infuriating. They shouldn't be able to get away with branding and painting two races, or one race and one ethnicity, as being too simple minded, too stupid, to vote!"

That's not how I read the court's decision. It is, rather, a significant misrepresentation.

I tried calling the show to raise these issues, and actually got as far as the call screener. I pointed out to the screener that "they are misrepresenting the verdict." The screener listened momentarily, told me that they were covering these issues, and in response to my further protestations, hung up. I decided that perhaps I had not explained myself tersely enough, and prepared a two-sentence argument to give the screener. I called again. A voice: "KFI." Me: "You are completely misrepresenting the verdict." The voice: "Thanks." (click).

Here is what I would have said had I been allowed to go on the air: The court's written opinion does not argue that minority group members are inadequate voters, but that the punch card system is inadequate technology which makes mistakes in counting votes after the ballots have been collected.

The program has completely failed to mention the Bureau of Standards report from the 1970s, has concentrated inappropriately on one study that is mentioned almost in passing, and has failed to mention the study by the Caltech-MIT group. The court's decision does not depend on any lack of voting adequacy by minority voters, but rather on the fact that technically inadequate voting systems are still being used in counties such as Los Angeles, counties which contain a lot of minority voters.

I was never afforded that chance and the radio audience did not get to hear these arguments.