What's the hurry? Bruce Ackerman has an op-ed piece in the New York Times today arguing that the Ninth Circuit should not delay the vote in California. I have to admit that I was a bit surprised by Ackerman’s willingness to limit the possibilities raised by the equal protection claims upheld in Bush v. Gore. Here’s his argument:

This time around, the candidates in California have already invested heavily in a short campaign. Their competing strategies have been designed to reach a climax on the Oct. 7 election date. If they had known they would have to compete until March, they would have conducted their campaigns very differently. By suddenly changing the finish line, the three-judge panel of the United States Court of Appeals for the Ninth Circuit disrupts the core First Amendment freedom to present a coherent political message to voters . . . Worse yet, the decision disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort. State law promised them a quick election if they completed their petitions by an August deadline.

It also offered them a fair election. It seems reasonable for a court to postpone an election long enough to permit the installation of fair voting systems, rather than going through with error-prone machines and then trying to sort out the mess afterwards.

What about Ackerman’s First Amendment argument? It always helps to have the text around. So the First Amendment says: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The core of the First Amendment may be the protection of political speech. But even if that’s right, it’s a big stretch to say that its core is the freedom to present a coherent political message to voters. That’s either rhetorical flourish or wishful thinking. Ackerman is asserting a First Amendment right to have an election run on time. I’m sure it would be a good thing to have prompt elections, and there may be statutory law requiring it. But, if there’s a constitutional claim involved here, it is the right to have one’s vote counted equally in a fair election. Ackerman thinks that this claim isn’t strong enough to override his First Amendment concerns. I think those concerns are overstated, at best. But even if they aren’t, this is an opportunity to see whether the Supreme Court was serious about the equal protection arguments of Bush v. Gore. It’s worth waiting for a decision about whether the Court meant what it said about guaranteeing fair elections.