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Monday’s 9th Circuit Court of Appeals decision to delay California’s recall election was a victory, though perhaps short-lived, for UC Berkeley Political Science Professor Henry Brady’s two-year crusade against punch card voting machines. 

Brady’s research into inequities caused by the use of punched cards was the linchpin in the suit brought against the state of California by a group of public interest legal organizations, including the American Civil Liberties Union and the National Association for the Advancement of Colored People. 

In a Monday afternoon press conference at UC’s Institute of Government Studies, Brady said he started looking into how punch cards compared with other voting systems after the 2000 presidential elections. Then, they played a key role in the election which became the U.S. Supreme Court case of Bush vs. Gore, which caused George W. Bush to become President. 

He called punch cards “a lousy system for voting” which causes the voice of poor people to go unheard when they come to the polls. 

His research results, which were submitted to the court by the plaintiff-appellants as a declaration, showed that in the six California counties which use punch cards, a significant number of votes cast by minority members were not counted because of systematic errors created by the technology’s flaws. 

The appeals court’s opinion agreed with his contentions that the rate of uncounted votes—which he calls “residual votes”— was significantly higher for minority voters than for non-minorities, and more than 2.5 times worse than for any other voting system, including electronic systems. 

Brady said that, in his estimation, the appeals judges confronted two competing interests. 

On one hand, the court said, “this is a classic voting rights equal protection claim.” Minority voters face the prospect of losing a significant percentage of their total votes because they live in punch card counties in disparate proportions. 

On the other hand, courts never like to delay elections. 

This election, however, does not pose the usual risk of leaving an office vacant, which is usually cited as the problem with postponing elections. Votes on the two propositions on the ballot will also be delayed, but they were previously scheduled for March anyway. 

The state of California, represented by Secretary of State Kevin Shelley, can appeal either to the U.S. Supreme Court or to the Ninth Circuit sitting as a group “en banc”—with at least half of the venue’s 25 judges in attendance. 

Brady was unwilling to hazard a guess on the outcome of such an appeal. 

Ted Costa of the pro-recall group Peoples’ Advocates, who filed a brief in support of the trial court decision, might also appeal, Brady said. 

Stephen R. Barnett, a constitutional law professor at UC’s Boalt Hall, told the Daily Planet that he thinks that the state “has an uphill battle” in pursuing their appeal. They must first persuade either Justice Sandra Day O’Connor on behalf of the U.S. Supreme Court, or the more liberal 9th Circuit, to take the case. He thought some decision would be made quickly under the circumstances, perhaps within a week.  

Professor Brady’s research did not address potential problems which could be created by electronic voting systems which have recently been raised by computer scientists and others. 

At his press conference, however, in answer to a question, he pointed out that all modern non-paper voting systems, including punch cards, scanned votes and touch-screen methods, utilize computer vote counting, and thus are subject to being hacked or rigged if proper safeguards are not in place.