CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/1/2023 1

Continuing the Use of Punch-Card Ballots 

for a Special Election 

Southwest Voter Registration Education Project v. Shelley 

(Stephen V. Wilson, C.D. Cal. 2:03-cv-5715) 

Two months before a gubernatorial recall election, a federal complaint challenged the use in some jurisdictions of punch-card ballots. The district judge denied immediate relief because the election 

would be held before a previous consent decree’s decertification of 

punch-card ballots would go into effect. A three-judge panel of the 

court of appeals reversed the district court’s ruling, but an elevenjudge en banc panel subsequently affirmed the district court’s decision. The governor was recalled. 

Subject: Voting procedures. Topics: Voting technology; 

intervention; laches. 

Two months before California’s October 7, 2003, gubernatorial recall election, two interest groups filed a federal complaint in the Central District of 

California to enjoin the election because some California jurisdictions were 

going to use punch-card ballots, which the plaintiffs regarded as insufficiently reliable.1

 With their complaint, the plaintiffs filed a notice that the case was 

related to a case before Judge Stephen V. Wilson that was filed in 2001 and 

resolved by a consent decree on May 8, 2002.2

The two original plaintiffs in the 2003 action were among the thirteen 

plaintiffs in the 2001 action.3 According to the consent decree, punch-card 

ballots would be decertified for use in California as of March 1, 2004.4 Five 

days after the 2003 complaint was filed, the plaintiffs filed an amended complaint adding an interest group that had not before been a plaintiff in either 

action.5 Judge Wilson also permitted another party to intervene.6

1. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 916–17 (9th Cir. 2003); 

Sw. Voter Registration Educ. Project v. Shelley, 278 F. Supp. 2d 1131, 1133–34, 1137 (C.D. 

Cal. 2003); Docket Sheet, Sw. Voter Registration Educ. Project v. Shelley, No. 2:03-cv-5715 

(C.D. Cal. Aug. 12, 2003) [hereinafter Sw. Voter Registration Educ. Project Docket Sheet] 

(complaint filed on August 7, 2003, D.E. 1). See generally Daniel P. Tokaji, Leave It to the 

Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio St. L.J. 1065, 

1073–78 (2007) [hereinafter Lower Courts]; Daniel P. Tokaji, The Paperless Chase: Electronic 

Voting and Democratic Values, 73 Fordham L. Rev. 1711, 1729–30 (2005) [hereinafter Paperless Chase]. 

2. Sw. Voter Registration Educ. Project Docket Sheet, supra note 1 (D.E. 3); Docket Sheet, 

Common Cause S. Cal. Christian Leadership Conference v. Jones, No. 2:01-cv-3470 (C.D. 

Cal. Apr. 17, 2001) [hereinafter Common Cause S. Cal. Christian Leadership Conference 

Docket Sheet]; Consent Decree, id. (May 9, 2002), D.E. 77. 

3. Common Cause S. Cal. Christian Leadership Conference Docket Sheet, supra note 2 

(amended complaint filed on April 24, 2001, D.E. 4); Sw. Voter Registration Educ. Project, 

278 F. Supp. 2d at 1134. 

4. Consent Decree, supra note 2; Sw. Voter Registration Educ. Project, 278 F. Supp. 2d at 

1135. 

5. Sw. Voter Registration Educ. Project Docket Sheet, supra note 1 (amended complaint 
Continuing the Use of Punch-Card Ballots for a Special Election 

2 Federal Judicial Center 9/1/2023 

On August 20, 2003, not quite two weeks after the 2003 complaint was 

filed, Judge Wilson denied the plaintiffs injunctive relief.7

 He concluded that 

the plaintiffs had not made a sufficient showing that it would be improper to 

use punch-card ballots in some jurisdictions before the 2004 consent-decree 

proscription: “Alternative technologies will not be available in several of the 

affected counties in time for the October election.”8

With respect to consent-decree parties seeking relief in advance of the 

agreed deadline, “while the Court need not decide the res judicata issue at 

this juncture, there is ample reason to believe that Plaintiffs will have a difficult time overcoming it.”9

Also: “As with the question of res judicata, while the Court need not decide the defense of laches at this point in the litigation, it clearly poses a significant impediment to the prosecution of this suit.”10

Here, Plaintiffs waited almost two years to reassert their claims with full 

knowledge that, until replacement of the punch-card machines in March of 

2004, other elections would take place. . . . Most significantly, the 2002 

primary and general elections came and went without Plaintiffs at any time 

asserting these claims or calling for injunctive relief.11

On September 15, however, a panel of the court of appeals disagreed with 

Judge Wilson’s conclusions.12

[T]he effect of using punchcard voting systems in some, but not all, 

counties, is to discriminate on the basis of geographic residence. 

This is a classic voting rights equal protection claim. . . . 

. . . 

It is virtually undisputed that pre-scored punchcard voting systems are 

significantly more prone to errors that result in a voter’s ballot not being 

counted than the other voting systems used in California. . . . 

. . . 

. . . Plaintiffs have tendered sufficient evidence to demonstrate a likelihood of success in establishing that there is no rational basis for using votfiled on August 12, 2002, D.E. 22); Sw. Voter Registration Educ. Project, 278 F. Supp. 2d at 

1137. 

6. Minutes, Sw. Voter Registration Educ. Project, No. 2:03-cv-5715 (C.D. Cal. Aug. 18, 

2003), D.E. 27. 

7. Sw. Voter Registration Educ. Project, 278 F. Supp. 2d at 1146; see Allison Hoffman, Joel 

Rubin & Jean Guccione, Court Ruling Keeps Recall on Track for Oct. 7 Ballot, L.A. Times, 

Aug. 21, 2003, at 24. 

8. Sw. Voter Registration Educ. Project, 278 F. Supp. 2d at 1141. 

9. Id. at 1137. 

10. Id. at 1138. 

11. Id.

12. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 882 (9th Cir. 2003); see Tokaji, Lower Courts, supra note 1, at 1074–75; Daniel P. Tokaji, Public Rights and Private 

Rights of Action: The Enforcement of Federal Election Laws, 44 Ind. L. Rev. 113, 115–16 & 

n.16 (2010); Henry Weinstein, The Recall Campaign, L.A. Times, Sept. 16, 2003, at 1. 
Continuing the Use of Punch-Card Ballots for a Special Election 

Federal Judicial Center 9/1/2023 3

ing systems that have been decertified as “unacceptable” in some counties 

and not others.13

Animating the panel’s decision was its observation that “forty-four percent of the electorate will be forced to use a voting system so flawed that the 

Secretary of State has officially deemed it ‘unacceptable’ and banned its use 

in all future elections.”14

According to the panel, res judicata was not a bar to the plaintiffs’ 2003 

action because of the new plaintiff in the later case and because the unusual 

recall election was not foreseen in 2002.15 Nor did the panel find laches to be 

a bar, because the complaint was filed only two weeks after the recall election 

date was set.16

The court of appeals voted to have the case reheard en banc.17 On September 23, the en banc panel affirmed Judge Wilson’s decision.18 “If the recall 

election scheduled for October 7, 2003, is enjoined, it is certain that the state 

of California and its citizens will suffer material hardship by virtue of the 

enormous resources already invested in reliance on the election’s proceeding 

on the announced date.”19 The en banc panel determined that the plaintiffs’ 

legitimate concern “that use of the punch-card system will deny the right to 

vote to some voters who must use that system” was too speculative.20

On October 7, Governor Gray Davis was recalled and Arnold 

Schwarzenegger won the first of his two gubernatorial elections.21

13. Sw. Voter Registration Educ. Project, 344 F.3d at 895, 896, 900. 

14. Id. at 888. 

15. Id. at 901–05. 

16. Id. at 905–07; see Sw. Voter Registration Educ. Project, 278 F. Supp. 2d at 1134. 

17. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913 (9th Cir. 2003). 

18. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en 

banc); see Michael Finnegan, The Recall Campaign, L.A. Times, Sept. 24, 2003, at 1; Tokaji,

Lower Courts, supra note 1, at 1075; Tokaji, supra note 12, at 116 & n.16; Henry Weinstein, 

Court Sees Delay as Too Disruptive, L.A. Times, Sept. 24, 2003, at 22. 

19. Sw. Voter Registration Educ. Project, 344 F.3d at 919; see Tokaji, Paperless Chase, supra note 1, at 1730 (“In effect the court punted, leaving for another day the applicability of 

the Equal Protection Clause and Voting Rights Act in cases where inaccurate voting equipment is employed.”). 

20. Sw. Voter Registration Educ. Project, 344 F.3d at 919–20; see Tokaji, Lower Courts, supra note 1, at 1075 (“If the Ninth Circuit opinion did not clarify the law, it did not muddy it 

either.”). 

21. See John M. Broder, Davis Is Out, Schwarzenegger Is In by Big Margins in California 

Recall, N.Y. Times, Oct. 8, 2003, at A1; Michael Finnegan, Gov. Davis Is Recalled; 

Schwarzenegger Wins, L.A. Times, Oct. 8, 2003, at 1; see also Peter Nicholas, A Second Term 

for Schwarzenegger, L.A. Times, Nov. 8, 2006, at 1.