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Attorney Marc Levin:

there are flaws in the panel's opinion that, if the full Ninth Circuit affirms it, would allow the Supreme Court to reverse the decision while still adhering to its holding in Bush v. Gore .. [For example] the California Secretary of State has adopted a single standard for determining what constitutes a vote in all systems, avoiding different definitions of a vote being used in different counties ..

In 1988, the Ninth Circuit declared in Burdick v. Takushi that federal courts should refrain from invalidating state election laws when a reasonable alternative course of action exists. Now, the court has violated this principle by failing to even consider the many post-election remedies available, and the likelihood that the results will make this dispute academic. Consequently, the Supreme Court can reverse this decision solely because it imposes an excessive remedy, while still affirming the fundamental holding of Bush v. Gore that federal courts must ensure the integrity of all elections.