five in the other and in the case of an unprecedented i'm scheduled recall election where forty four percent of the electorate much use the florida cloned punch card machine system which the secretary of state has decertified is the fact they're obsolete or otherwise unacceptable and which he admits in this lawsuit to be more prone to voter error than our newer systems those are the competing considerations in this case now the difficult question in this case as in bush versus gore is we want to remedy and if the court doesn't have specific questions on the other issues i'd like to begin with that one interest whatsoever none exist as to why those those initiatives should not be moved back to the march action where they were recently certified to take place or whether in fact at an earlier date if one is available both initiatives your honor were certified more than a year ago two thousand to by the then secretary of state to appear on the march two thousand and four ballot for three hundred seventy five were in fact to take place when on july twenty third three hundred seventy five days after the certification that election was moved as part of the took place all the state statutes with respect to terms of looking at what whether or not there are any interests that in fact would compel or that would overwhelm the federal interest with respect to equal dignity equal weight of all vote and my point is simply this that in the last thing that was certified was scheduled to take place on march two thousand and four no injuries presented as why that election should not in fact not in fact removed in order to vindicate the constitutional federal constitution was that we're presenting one final point with respect to those initiatives and then i'll move on and that is particularly with respect to proposition fifty four the face of that initiative the very title of that initiative tel as to whether a sitting governor should be recall not an election as stated with the november two thousand and two election or the elections in every one of the cases which they cite we're in uncharted territory here now in an election where if in fact the late or a postponement of the election takes place there are federal interests that are implicated your arms will recall that in the november two thousand and two election if that election have been postponed even though it took place with respect t illegal unconstitutional punch card machines but if that alexion had taken place california would have had no representatives in congress in violation of article one section so all the states executive officers from the governor down eighty members of the state assembly twenty members of the state senate none of those individuals would have been in position that office would have been vacant in violation of the guarantee clause of united states constitution and that is of course is also what the essence of the rights of the that's why it's preservative of all other rights those are serious and grave federal interest and they raised different questions that were are involved here although i would point out that even in that's in that situation it's an interest that emerges out of the state constitution article two section fifteen and importantly interest with which back to feeling the dealing with the public's concern as to whether or not this sitting governor should that competes equally with respect to the interest on this site particularly where the substitute election the post home until the election can take place in a reasonable period of time march fourth at the latest there's nothing in the record that says that the counties can't do it earlier i don't know what the status with respect to that but that is the outside date that it can take place what are the interests that we bring to compete with respect to that state interest and your honor since the is the court is aware the interests that are presented with respect to the election going forward on october or ask federal interest they all have federal constitutional and statutory interest coming from the voting rights act a statutory interest are and they are interests that are at the paramount nature of our system of constitutional democracy that is as does wilson himself found yes this election  forward in october the interest of the voters was a result of the systematic geographic and racial disparities in the operations of the systems themselves that the injury that will be suffered by the voters of the state of council step forward one nine to two thousand to be utilized for the plan for the last couple of elections and many local elections and little they have been used for local elections your honor is quite correct they have been utilized for one statewide election and that was in november two thousand and two the reason that that election could not be enjoins is with respect to the big interests that i mentioned a few moments ago and that is that that if  directly with respect to the nature of the error the problems with the punch card machines themselves have been difficult thing with these machines part of the constitutional invalidity part of the reason that the bush gore to page one  four said that these produce these produce on fortunately results in terms of others that are not clear the recount procedure will not deal with the errors that the punch card machines create it certainly can't deal with the over exactly what your honor sets with respect to the varying standards the cause of the problem was the punch card machines because they didn't not lend themselves to the sort of recount analysis you're talking about that's point one point two is this and i know the court understands the rights that we're talking about the rights of political equality the rights that the bush versus gore court talked about i paid one hundred eight in terms of having the opportunity the same opportunity should not be in this country that because you're poor because you're a voter of comics because you live in los angeles that you have a last opportunity to have your vote counted that doesn't matter whether you're voting for schwarzenegger bustamante or gary coleman the point is you problem that's it that's a question i want to answer this way you're on i think in this case we have both a qualitative and quantitative problem the qualitative problem is with respect to the machines themselves  poor urban voter of this proportion minority those votes aren't going to be counted it's like putting a trap door in the ballot box that's two and a half times wherever that line is drawn that is a distinction that recall that over a three page period in that decision justice white says that what we're dealing with here is really the first amendment questions a ballot access question here all day alternative ways in whole rabbi for the voter to between accomplishing election on schedule results the california constitution and sending out  the same time the recall election would have been held at the same time as the march general election that's correct joinery circumstances have been different from what they are now then what happens their desire to serve the people of california and protect the voting rights of people california in particular people of color high i think the interest of of california particulars of future elections between now between may two thousand and two in march two thousand fold the but everybody knew that there was a recall for everybody knew that there are provisions in the california constitution that set the schedule because the recall election will be with and some system other than a punch card voting machine but they pursue that claim hopefully they settle for a march two thousand for the certification thing and i was the consent decree that you know that i gather i think it's very first from his order that he he considered the consent decree which would do exactly what it said and that is our use of the voting systems in california transitioned and their equipment march two thousand and four elections occur august two thousand for all of the sudden recall effort that students gather recall election certified and indeed there's k prejudice in the last prejudice is that everybody has the working towards a march two thousand and four transition everyone in the counties the secretary of state staff has been through there were very work and the window and what that what that case was about was that you cannot state an equal protection claim based on voting rights based on race lets you show  to discriminate based on race and so i don't think the burdock reference to nondiscriminatory was a was a lightly used word pointed toward a machine that may or may not have a discriminatory you're being called upon to do in this case is to judge the constitutionality of a voting system which as you point out you have used for nearly half a century we've used it to elect statewide office introduced machines on which we register our choices and regimes that have you late those choices will be injected into the system strong degree of perfection we have too many people to do it the way they can do it up in humboldt or shasta we can't do that in san bernardino standing los angels in riverside county we need and we need a modern mechanized system to do it and if you introduce machines you can introduce some degree of  but it's our view that the constitution is sufficiently elastic to permit election officials to respond to local needs to make prudent choices to make judgments about what's acceptable to vallance considerations and to conclude punch cards are acceptable alternative you know secretary shelley and his predecessor may well have run for cover on this issue but crucially every voter registrar in this state is probably behind punch card technology they're being carried in going to do is not declare punch card voting unconstitutional they're asking you to call off all california elections the start of elections from happening because perhaps we can do well we always can do it better and in fact there are technologies that are not going to be available in march of two thousand and four that can do it better i want to be back here in february enjoying the march election because the plane to come up with evidence in the october election touchscreens be better than central count article scan and there is a disparity and we all know the touch screens are only being used in the the most wealthy counties questions does that really mean one man one vote this that's his position any variation between one man one vote and you have a constitutional violation now i submit to you i mean if that's the case then w in populations you're simply saying one man one vote in one county but one man statistician's tell me point nine one percent of the vote next door and the supreme court has uniformly said no constitutional violation i don't think i can stand up here and in group conscience give you a percentage and so if the variation is more than x you have a violation because the supreme court has told us that the constitution that doesn't provide any unthinking that florida was very much like california punch cards were used in metropolitan counties in florida and some of the outliers they use can calculate in votes they use i don't think they had all the stories of two thousand they didn't use i'm sorry touchscreens they didn't use optical have to do it pursuant to reasonable thoughtful standards that are going to be of uniform application florida didn't have it the court was up against a deadline and it's a we're going to have to go with what we what did we have percent a difference of two and a half percent we elected the president of the united states and accepting without question a variation of true and a half percent in this case the residual disparity in mind this is only one election one set of data for california and i think if i think it's it's not representative of all of it but the best of dr brady can come up with is one point three now i ask you how can a one point three variation the unconstitutional to be the violence of one man one vote when two point five got our president elected and the last vice seven justices of the very very instructive in this court said you can't believe the rhetoric of the period decision or some of the separate opinions you really do have to dive down a little bit closer than thirty thousand feet and start looking at what the justices said about this issue for a fact that verdict says that local officials need to have flexibility and if we're not going to apply we're not going to hamstring them with rigidity and rigid rigid interpretations of the equal protection clause  recognise that local officials local county officials of california's not on a state wide basis county wide basis have that right even if it injects disparities and if you look at some of the other decisions justice stevens wrote along joined otherwise florida's decision to leave each county the determination of what valid system to employ despite enormous differences in accuracy might run afoul of the protection clause clearly saying that the disparities thomas thought about the argument that the variations resulting from punch cards raised people protection claims he scoffed at that saying that the state had no obligation to prevent voters from making mistakes and that  responsibility of all this because league rules and regulations of the election clearly told voters to go make sure you turn in a clean ballot and that's what we do in california so i don't think we need to figure out exactly where on the ruler the with simply the incidental results of otherwise reasonable benign choices by state officials then the scrutiny level is far less and any kind of normal this was i mean i think a fair reading of what you like wilson did was to say look under any standard i come out the same way and that's what this rejoinders you know get paid to do exercise those kinds of judgments and and only if there's been a clear error in making that judgment is he subject to being reversed he had a lot of things to wait and i think he applied what he thought was an appropriate standard but he said if i pla california until march of two thousand and four on the basis of punch cards so i think i don't i don't see any basis to do that and we see the election code in california constitution to some extent joining as they h davis petition mandate proceedings and we appeared in that case and we posed that that made a petition but he raised that issue was well i don't see that it raises a federal question it's not obvious to me that it does because i don't think that every every instance of the state not following its own rules presents a due process violation and in fact we have that's litigation in the district court in the central district in connection with another piece we call all including not raised in the court below i don't think that's the argument here that the question is how you how you treat those issues in terms of a calculation public interest and house of hardships with trying to respect the state pro is that simply statistical evidence that minorities do worse than non minorities because of some particular practice doesn't get you there salt river was exactly that case you don't own land in arizona you don't get the vote in the election you could say specifically that minorities voted less frequently in those water district elections not on minorities and the question was to actively participate in the political process and there was a failure proof in salt river this case is this exactly the same are we have is that punch cards do worse than other systems  result of this from a nation you haven't proved that the practice causes a prohibited result on account of race and that's all we have here the only other study we have is mr grady's the bradys correlations which supposedly show and i find these to be the conclusions he's he draws from to be very unsettling particularly for these places but he says the parity in the concentration of minority within a county using punch cards of minorities the factors at work education levels voting for race any number of things but this election to climb or fail on that ground because there's nothing connecting up the dots you only have a pretty good a discriminatory result of the disparity results on account of race situation i don't disagree with mr rosenbaum on that this is one of the biggest political hot potatoes that we've encountered at least and in my recent experience as a california it seems to me it seems to me that the state has a very very compelling interest and the people of california have a very compelling interest to see this election go off on schedule i think the one thing that all californians could agree on is that we don't want to have to endure this situation for another five months beyond the scheduled election date and i think california as a political entity has a great interest in making sure that the election comes off on schedule  california as i think everybody knows is facing very grave unprecedently grave problems in sacramento and i think that the people of california are entitled to a governor the governor davis will be somebody else who is paying full time attention to the problems of the people of california and not to his own problems i think in fairness to governor davis for any sitting governor of the state has a compelling interest to get these issues resolved if this is a lunatic fringe that started this and it really doesn't represent the views of a majority of californians i think the sitting governor has has a right to have the question decided very very quickly and have had everything it must take place within sixty to eighty days that was a wise choice i think the state has a compelling interest in seeing that decision its constitution respected in that regard and given the absence of any all california elections because perhaps we could do a better i think this more should affirm that this court thank you of polling places the normally operate five thousand is going to be reduced to about eighteen hundred and you're exactly right judge thomas this is a case about changing circumstances voter education will not get the job done if in fact voter education was the answer here then the question is why wasn't done before and why why why do we go through this the sort of the case of a little concerned about some of the comments that the secretary of state has made today the context in which this sort of patient took place and this is the first time in the state's history that a voting system has been decertified pursuant to precisely the standard under one nine to two to that you even today and i believe this has the stature of a legal admission the state like the very first lines of its brief punch card voting systems are all of technology more prone to voter error than our newer voting systems both the president and the to which the challenge regulation burdens first and fourteenth amendment rights there is no doubt reading from page four thirty three or four swipes opinion there is no doubt that the hawaii election laws like all election regulations let me talk about the voting rights act point that this me the evidence was that it was absolutely disputed that there was a difference with respect to minorities one point three percent not tolerat the court found that it was plainly feasible to do it in march two thousand and four the impact of their arguments why it is so non commonsensical and frankly why it is so offensive to the process is that you are operating in good faith with  recall him and then there might be a special election and then the initiatives might be moved from march two thousand fourth to two thousand and three and the same people that's going to cost a lot of money and that's nowhere on the horizon we don't even know if that's the policy that they're