The 9th Short Circuit

Note: Michael Ackley's columns are satire and parody based on current events, and thus mix fact with fiction. He assumes informed readers will be able to tell which is which.

The Ninth Circuit Court of Appeals continued to scale the heights of judicial activism with its order delaying California's gubernatorial recall election, but you have to admire the judges' inspired phrase making.

Justices Richard A. Paez, Harry Pregerson and Sidney R. Thomas must share the credit for this sentence: "In this case, Plaintiffs allege that the fundamental right to have votes counted in the special recall election is infringed because the pre-scored punch-card voting systems used in some California counties are intractably afflicted with technologic dyscalculia."

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"Intractably afflicted with technologic dyscalculia": There is no doubt this gorgeous locution eventually will permeate all strata of American expression.

Soon we'll hear mathematics professors berate underachieving students, "You're intractably afflicted with technologic dyscalculia!"

The words will become a clich? in commercial transactions, like the haggling over automobile prices: "You want $5,000 in trade for that heap? Why, you're intractably afflicted with technologic dyscalculia!"

It even will erupt in hip-hop culture, when some rapper declaims:

The pimps and politicians, they'll always try to fool ya,
'Cause they think you are intractably afflicted with technologic dyscalculia.

(Attention: Eminem and 50 Cent. You like it? It's yours.)

Later in their opinion, the justices unreel the phrase "different transactional nucleus of facts," instead of simply saying "different facts," but it is clear their initial sally left them creatively enervated.

Still, they can be proud.

Beyond their linguistic prodigy, the three justices managed to invoke the words but not the music of the Florida fiasco, citing the U.S. Supreme Court ruling in Bush v. Gore at least eight times.

This invocation has thrilled and delighted the Democratic Party faithful – probably including Pregerson, Thomas and Paez, who were nominated to the bench by presidents Carter and Clinton.

The opinion quotes the Bush v. Gore dicta: "Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."

About 44 percent of California's eligible voters would have to use outmoded, punch-card voting devices in an Oct. 7 election. The judges agreed with the plaintiffs that because such devices have produced an error rate of something under 3 percent, voters using punch cards were statistically disenfranchised.

In an opinion that was about three-fourths law and one-fourth philosophy, the justices misapplied Bush v. Gore, which dealt not with initial vote-counting methods but with the disparate and subjective methods of the Florida recount.

Justice Antonin Scalia, noting that recounts introduced new errors in punch-card ballots, defined the issue as "the propriety, indeed the constitutionality, of letting the standard for determination of voters' intent – dimpled chads, hanging chads, etc. – vary from county to county . ..."

It's no stretch to say the Ninth Circuit citation of Bush v. Gore was itself a stretch, as were such assertions as:

• "It is perhaps ironic that the sitting governor could well cast a vote on his own recall that would not be tallied."

• "The margin of victory could well be less than the margin of error in the use of punch-card technology."

• "The public was permitted to examine the pamphlet only 57 days prior to the election, rather than the required 100 days. If the effect of voter education is as significant as the secretary of state claims, this delay could have a profound effect on the outcome of the initiative votes."

(If you buy the latter argument, you must assume California voters are as mentally deficient as the voters of Florida's Palm Beach County. This is statistically impossible.)

Further, the California Constitution requires that a recall be voted upon within 80 days of its qualification, so the 100-day rule never could apply.

The judges even argued that we should postpone the election to set a good example to "persuade the people of other nations of the value of free and open elections."

The Ninth Circuit panel's opinion makes some legal and logical sense – taken on its own terms. But the ruling is based on the assumption that electoral errors made in the past must be made in the future and the assumption that Bush v. Gore was dealing with the same issue as the California case.

It is a house built on sand.