STUNNER -- RECALL ELECTION BLOCKED BY 3 DEMOCRATS.
Unelected Federal bench panel cancels democratic elections, says stuff it to voters of California. The Constitution of California is voided in unbelievable, shocking court ruling. Read the opinion here.
Worth quoting:
"The three judges from the 9th Circuit who heard [CA recall] the case were all appointed by Democratic presidents — Judge Pregerson by President Carter and judges Sidney Thomas and Richard A. Paez by President Clinton — and are considered among the most [far left] on the court."
And Debra Saunders:
"The 9th Circuit Court is known for its blatant disregard for legal niceties when it comes to decisions that grate against the court's rarefied politics."
From the courts Orwellian opinion:
"In addition to the public interest factors we have discussed, we would be remiss if we did not observe that this is a critical time in our nation's history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections helf fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. A short postponement of the election will accomplish those aims and reinforce our national commitment to democracy."
RECALL BLOCKED Google News Search here.
Calblog is half way through the opinion and has her instant opinion here. She has this reminder, "Not coincidentally, March is the Democratic primary, expected to increase Democratic turnout."
Xrlq has this:
The basis for this ruling is a little-known provision of the Fourteenth Amendment, which reads:
"No state shall ... use punch card ballots... in any specially-called election against a Democrat incumbent. Nothing in this section shall preclude such state from using punch card ballots to re-elect said Democrat in a regularly scheduled election."
And here is Fresh Potatoes on the Federal disenfranchisement of Californian voters.
Kausfiles provides evidence of the "condescending, museum-quality [leftist] mindset" of one of the federal judges, and lots, lots more.
Election Law Blog argues in favor of the cancellation of democracy in California.
Steve Hayward:
We should never be surprised at the Ninth Circuit's depredations. It has been a rogue court for more than 20 years. We shall have to await a close reading of the decision by our legal friends, but one question that comes to mind is whether the holding of this court is that punch card ballots are ipso facto unconsitutional, based on the Supreme Court's holding in Bush v. Gore in 2000.
There were some of our legal scholars (like Mike McConnell) who worried in December 2000 that the Supreme Court's use of the equal protection argument as it applied to the counting of punch card ballots in Bush v. Gore would come back to bite conservatives. Setting aside the constitutional wisdom of the California recall, this appears to be the specter that McConnell worried about. It will be interesting to see how the Supreme Court handles the appeal, i.e., whether it modifies Bush v. Gore and repudiates the Ninth Circuit once again, or whether it punts entirely, not wishing to be drawn into another political mess. If the Supreme Court overrules the Ninth Circuit, it will add fuel to the fire of the left that there is a giant GOP conspiracy to steal elections (even though this is nonsense).
Law professor Instapundit quotes Porphyrogenitus:
"Regular readers know I'm against the Recall on general principles. Still, three judges have decided that the voting machines which were good enough to elect and re-elect Grey Davis are too error prone to recall him. No partisan agenda there, I'm sure."
Then offers his own opinion:
"Unless there's some awfully compelling legal principle that's not making it into the press accounts, I predict a reversal on this one. It's just too explosive.
Robert Tardorda has extensive coverage here.
Schwarzenegger statement:
“One million, six hundred thousand Californians of all political persuasions have signed petitions to recall Governor Gray Davis. The Secretary of State has certified that this election should go forth on October 7th. The California Supreme Court has also ruled that the election should go forward on October 7th. I fully expect that the federal courts will come to the same conclusion.
“Today, I call upon the Secretary of State to immediately appeal this decision on behalf of the citizens who have exercised their constitutional right to recall Gray Davis, and who expect an election on October 7th.
“Historically, the courts have upheld the rights of voters, and I expect that the court will do so again in this case.
“I will continue to vigorously campaign for governor. The people have spoken, and their word should – and will – prevail.”
Eugene Volokh:
“ .. I have one narrow question: Assuming that punch card ballots are generally less reliable than the alternatives, why should we think that using punch card ballots in several counties in Oct. 2003 would be less reliable than using the alternatives for the fist time in those counties in Mar. 2004?
Several county governments, containing millions of voters, are scheduled to change their way of doing things, all at once, in the Mar. 2004 election. Sounds to me like a recipe for lots of snafus, in which quite a few votes may get lost, ignored, and otherwise uncounted or improperly counted (and, just as the problems with punch card ballots disproportionately hit voters in the counties that still use punch card ballots, so the problems with the changeover will disproportionately hit voters in the counties that will change over).
Now I don't think that this modest level of error would be unconstitutional. I think that as a policy matter, it might well make sense to risk some amount of such glitches in order to get things worked out for the future (if one thinks that over the long haul there'll be fewer problems with the new technologies than with the old, which I'll assume for now).
But the Ninth Circuit's assertion is that there is no "rational basis" for continuing with the old system -- and thus that there's a constitutional obligation to wait until the new system is in place -- because running the recall election under the current system will produce a substantial error rate and running the recall election under the new system would produce a lower error rate. I'm just not confident that this is so. Maybe I'm wrong, because the shifts to the new system are likely to be less troublesome than I'm afraid they might be. But given what we know about complex systems (especially government-run ones), I suspect that my gut feeling is correct here.
Daniel Wiener predicts a Democrat busting Supreme Court split decision.
Rick Hasen, election law blogger:
Preliminary thoughts on the ACLU punch card decision by the Ninth Circuit ..
1. Were the judges right to enjoin the recall? When the recall litigation started, I was very skeptical of most claims that were being brought to delay or change the rules for the recall. (For example, see here.) I said here back on August 1 that the punch card suit was the case to watch because the issue presented is so strong.
The argument is simply that the use of punch card votes---with their concededly much higher error rates--- in some counties but not others in a statewide election violates the equal protection clause. This is a straightforward application of Bush v. Gore. Indeed, back in 2001 I wrote this article about what Bush v. Gore's equal protection holding would mean if we took the case seriously, and I set out a series of hypotheticals. The punch card case was the easy case, my first hypothetical. If it violates equal protection to use non-uniform voting standards for recounting votes in a statewide election , if that "values one person's vote over another" in violation of the Equal Protection Clause as Bush says, then it must be an equal protection violation to use different machines with different error rates in the same election. This creates a systematic geographical disparity---if you live in Los Angeles or another county using punch cards, your chances of casting a ballot that will be counted is much lower than your chances from another county. The state knows it, and it could have prevented it from happening. If Bush v. Gore does not apply here, it applies nowhere and the opinion, as many of its detractors claim, has no precedential value.
2. What is noteworthy about the Ninth Circuit opinion? It applies Bush v. Gore in a straightforward manner. It hold that the state's claim fails even under rational basis review. This surprised me somewhat; my brief argues that strict scrutiny should apply and that under that standard, the use of punch cards fail. Another notable point is that the court did not even reach the Voting Rights Act issues, which potentially would have been a less controversial way to decide the case---without directly implicating Bush v. Gore. Finally, the opinion does not set a March date for a recall. It enjoins the October 7 election and lets the district court sort out whether the state can run an election without punch cards on a quicker schedule.
3. What is likely to happen next? The losing parties (the Secretary of State and recall intervenor Ted Costa) can petition the entire Ninth Circuit to hear the case en banc by a panel of 11 judges chosen at random or the parties can go to the Supreme Court, first to Justice O'Connor (the Circuit's Justice) for a stay. Justice O'Connor is currently out of the country. She likely would forward the request to the entire Supreme Court. Would either group be interested in the case? If either takes the case (and as Fred Woocher pointed out to me, any judge on the Ninth Circuit can call for an en banc vote even if the parties don't ask for it), it will be a good sign that a reversal is coming. But I think there is a reasonable chance that neither will want to take the case--especially the Supreme Court, which, having been criticized severely for intervening in the 2000 presidential election may not want to intervene again now when the stakes are, thankfully, much lower. We have no national election on the line, no potential transition crisis. Remember, the Court did not get involved after the New Jersey Supreme Court decided to allow Democrats to replace Sen. Torricelli on the ballot. that case too, raised a Bush v. Gore issue, albeit a different one (the right of the legislature, rather than the state courts, to determine the rules for federal elections). Note, there are also some interesting standing questions about who can appeal to the Supreme Court---expect these issues to arise as this continues.
Look for continuing blog coverage throughout the day from:
Election Law
The Southern California Law Blog
California Insider
Posted by Greg Ransom
