Sunday, August 31, 2003
Recall oped Dan Weintraub talks to California historian Kevin Starr here.
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McCain-Feingold opeds Michael Bailey offers "Avoidance of Corruption More Vital than Absolute Free Speech" in the Salt Lake Tribune; Robert Robb offers "Money Maze Flusters Flake" in the Arizona Republic. The latter oped begins: "If the U.S. Supreme Court wants an illustration of how McCain-Feingold interferes with political speech, Congressman Jeff Flake's efforts to repeal Arizona's system of public campaign financing could be Exhibit A." (John McCain's Washington Post oped, "Why We Must Win," is about Iraq, not the Supreme Court's hearing in the campaign finance case.)
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Saturday, August 30, 2003
"In California They Run. In Texas They Run Away." The New York Times offers this Week in Review piece comparing the California recall and the Texas re-redistricting issues.
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"Rehnquist May be Key for Campaign Finance" The Washington Post offers this report on the upcoming McCain-Feingold oral argument.
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Roundup of legal recall issues A lot has happened on legal issues related to the recall during the time I was travelling with a laptop computer infected with a virus---preventing me from keeping up with developments. Here is where we are on the most pressing legal issues:
Preclearance cases Judge Fogel gave the preclearance questions to a special three judge court (Fogel, Whyte and Circuit Judge Callahan---a special court, not a Ninth Circuit panel as erroneously reported in the caption of a picture in Saturday's New York Times.). The court issued this order extending until Sept. 5 the temporary injunction preventing the sending out of ballot materials in Monterey County. The court has very little discretion here. Unless the Justice Department grants preclearance of the consolidation of precincts in Monterey county and changes in voting laws that are allowing Props. 53 and 54 to be on the same ballot as the recall, or unless the state changes the laws to go back to the old law s(i.e., no consolidation and no inclusion of the propositions on the ballot), it looks like the court will order the recall election to be delayed. (There may be some room for equitable discretion here if the court believes the request came too late, but perhaps not.) Similar litigation has been filed regarding two other counties covered by the preclearance division of the Voting Rights Act. In Merced County, a judge has issued a TRO preventing the sending of absentee ballots. See here. A hearing on the Merced/King counties issue is set for Thursday.
Punch card case The Ninth Circuit issued this order expediting the briefing and argument in this case, which challenges the use of punch card voting in some jurisdictions rather than others as a violation of equal protection and section 2 of the Voting Rights Act. (Disclosure: I have filed this motion/amicus brief supporting the ACLU in this case.) The judges are being asked to delay the election until punch card voting can be replaced, which will be, at the latest, by March 2004 (pursuant to an earlier consent decree).
Campaign finance issues There are some very interesting campaign finance issues related to the recall, falling into two basic categories. (1) Contribution limits apply to part two of the recall (for or against specific candidates besides Gov. Davis) but not to part one (spending supporting or opposing Davis's recall). (2) There are questions about whether Bustamante and McClintock can take advantage of some transition rules to California's new campaign finance law that seem to allow unlimited contributions even for part two spending. As to the second question, the Fair Political Practices Commission issued this press release which appears to back off on its earlier interpretation allowing for the use of the old funds. The New York Times offers this report on the campaign finance questions.
Fascinating First Amendment/campaign finance issue Gubernatorial recall candidate Tom McClintock has refused to sign a pledge for voluntary expenditure limits for his campaign. As a consequence, state law denies him the right to place a ballot statement in the sample ballot materials. McClintock has filed a lawsuit challenging this procedure, claiming that he meant to check a box indicating that he would abide by the limits, but inadevertently failed to do so. It appears from this FPPC press release that he has failed in getting California Courts to accept this argument.
Perhaps a stronger argument to make would be that the requirement that a candidate abide by a voluntary spending limit in order to gain a place on a ballot pamphlet is unconstitutional. Although the Supreme Court in Buckley v. Valeo, 424, U.S. 1( 1976) held it is constitutional to condition public financing on complying with voluntary spending limits in expenditure campaigns, it is not at all clear that other government benefits may be denied if a candidate fails to sign a pledge. (The constitutional claim is that it creates an "unconstitutional condition" on the candidate's first amendment right to engage in unlimited spending.) New Jersey's election commission, for example, proposed denying a place in debates to gubernatorial candidates who do not limit their contributions.
The first amendment claim would have been a natural one for McClintock to raise. Perhaps he raised it as well and it did not get any press (e.g., it is not mentioned in this Sacramento Bee report).
Other recall lawsuits There are still some other recall lawsuits alive. The federal Partnoy case in San Diego could become important in terms of whether abstention votes will count toward the "no" vote in part one or not. There is still litigation over the wording of the ballot description of Proposition 54. (See this Los Angeles Times story.) There apparently is still a federal lawsuit pending raising the question whether Bustamante automatically becomes governor if Davis is recalled. (The state Supreme Court rejected such a claim earlier). And no doubt, if voting goes as poorly as predicted in this Los Angeles Times article, we may see post-election suits as well, something I have been saying all along the state should try to avoid if possible.
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Thursday, August 28, 2003
Court orders expedited hearing in aclu punch card appeal The 9th Circuit has ordered the defendant's response by Sept. 4, with a reply by Sept. 8. Oral argument is set for Sept. 11. I don't know yet who the panel is.
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Virus, laptop trouble On on the road at the APSA meetings, with virus problems. If you have e-mailed me, I can't email you back right now. Sorry.
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"Crowded Ballot May Lead to Delays, Disarray, Experts Say" The Los Angeles Times offers this report.
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"Civil rights groups ask appeals court to delay Oct. 7 election" The Sacramento Bee offers this report.
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"County officials dispute lawsuit challenging voting rights flaws" The Merced Sun-Star offers this report.
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Link to my motion and amicus brief in the ACLU punch card case You can find it here.
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Wednesday, August 27, 2003
Amicus brief in ACLU punchcard recall case I have moved to file an amicus brief in the punch card recall case in the 9th circuit. When a full version of the brief is posted somewhere, I'll post a link. In the meantime, here is the introduction and summary of argument:
In Bush v. Gore, 531 U.S. 98, 108 (2000), the United States Supreme Court warned that "[t]he press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees." In this case, however, the district court's desire for speed served precisely as its excuse for ignoring equal protection guarantees.
Appellants argued below that the use of punch card ballots in some — but not all — counties in the forthcoming California gubernatorial recall election raised serious equal protection concerns because of the concededly much higher error rates of punch card machines in tabulating votes. The district court should have given this claim serious consideration, especially given a confluence of factors unique to this election: the plurality rule for choosing a gubernatorial successor, the high expected turnout, the substantial consolidation of precincts in some counties due to haste and budgetary concerns, and the large number of candidates to be listed on the ballot in random order.
The facts set forth in Appellants' Opening Brief amply demonstrate that the chances of someone in Los Angeles county (and other counties using punch card ballots) being able to cast a vote that actually counts is going to be much lower than the chances facing someone voting in a county using more reliable voting equipment, especially in counties using superior technology and not consolidating their precincts. At stake is the ability of all California voters, regardless of their counties of residence, to cast a vote and to have it counted. "Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted…." United States v. Classic, 313 U.S. 299, 315 (1941) (emphasis added).
Rather than give serious consideration to the equal protection problem, the district court elevated a California provision for setting the date of a gubernatorial recall election over equal protection concerns. The court viewed the state's choice as "using punch-card machines in several counties and using nothing at all in those counties." (Order Denying Plaintiffs’ Ex Parte Application for Temporary Restraining Order and Motion for Preliminary Injunction, Southwest Voter Registration Education Project v. Shelley, No. CV03-5715 CVW (Rzx), Aug. 20, 2003, at 19 [hereinafter "Order"]...; Cal. Const. art. II, § 15(a) (requiring that date be set within 60 to 80 days after certification of recall).
In treating the California recall dates as sacrosanct, the district court created a false dichotomy. Surely it is better to allow voters in punch card counties to vote using those machines than not to vote at all. But there was a third choice: to delay the election until the state may substitute other, more reliable voting technology. The latest this date would be is March 2004, when the counties, pursuant to an earlier consent decree, must use alternative voting technology in any case.
This result is mandated by the strict scrutiny that Bush v. Gore demands when faced with such an equal protection problem. The district court, however, treated Bush v. Gore as either lacking in any precedential value or subjecting cases such as this one to rational basis review only. (Order at 16-18.) As explained below, the district court erred on both counts.
The district court judge in this case should have done what the district court did in another suit filed in connection with this recall litigation. That judge faced the argument that a provision of California’s recall law allowing only those who vote in part one of the recall (should the governor be recalled?) to have their votes counted in part two of the recall (choosing a successor candidate) violated the Equal Protection Clause. Rather than view the choice as either an election with the constitutionally offensive provision applying or no election at all, the court simply struck the offensive provision (after holding it unconstitutional) and ordered the recall to go forward under a rule that counts every qualified voter’s vote in part two regardless of whether the voter casts a vote on the question in part one. Partnoy v. Shelley, No. 03CV1460 (S.D. Cal. July 29, 2003)....
Similarly, under the strict scrutiny standard of review applicable to this case, a state provision setting the date of the election cannot stand in the way of remedying an otherwise unconstitutional election. The district court should have issued an order delaying the election until the state could replace the punch card voting machinery. Such a conclusion is hardly remarkable; indeed, the Supremacy Clause of the United States Constitution demands it. See Bell v. Southwell, 376 F.2d 659, 665 (5th Cir. 1967) (ordering a new election in the face of racial discrimination, and holding that federal courts "are not so helpless or unresourceful" as to be hamstrung by state law that would seem to prevent ordering a new election).
This brief explains that: (1) strict scrutiny does apply to the punch card issue under Bush v. Gore and other controlling authority; (2) plaintiffs are likely to succeed on the merits in proving that the selective use of punch card ballots in the recall election fails strict scrutiny; and (3) plaintiffs will suffer irreparable harm should this court not reverse the district court’s denial of a preliminary injunction in this case, a point the district court conceded in its order. (Order at 23 ("[A]s this Court cannot envision an effective remedy that would be available to Plaintiffs after the votes have been cast, it assumes for purposes of this analysis that the alleged injury would be irreparable.").)
The irreparable injury point is worth highlighting to this court. The state has taken the position, in litigation raising similar issues before the California supreme court, that courts might craft some remedy after the election for equal protection problems that arise from the use of punch card ballots. The state is wrong. As explained below, there likely can be no adequate post-election remedy for the punch card problems identified in this case — overvotes (votes for more than one candidate) cannot be recounted, nor can people deterred from voting because of voting problems later get a chance to vote. This court is in the unique position to prevent harm from occurring, harm that cannot be remedied later.
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Davis invited to recall candidate debate one week before the election See this L.A. Times report.
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"Ashcroft's Little Secret" Lisa Danetz offers this opinion piece on an investigation of Attorney General Ashcroft's 2000 campaign for Senate.
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Findlaw has now posted the ACLU's opening brief in the punch card appeal Download it here.
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Supreme Court argument order in BCRA case Here is a letter sent by the Supreme Court clerk to counsel:
Dear Counsel, etc.,
The Court has determined the following order and time allocations for the advocates on Sept. 8th in the above-stated cases:
A.M. SESSION ARGUMENTS LIMITED TO SECTIONS 101 & 213 of BCRA:
TOPSIDE
1) K. STARR for McCONNELL PLAINTIFFS/**20 mins.
2) B. BURCHFIELD for POLITICAL PARTY PLAINTIFFS/**40 mins.
BOTTOMSIDE
1) GEN. OLSON for FEDERAL DEFENDANTS/40 mins.
2) S. WAXMAN for INTERVENOR-DEFENDANTS/20 mins.
P.M. SESSION ARGUMENTS TO ADDRESS ALL OTHER CHALLENGED SECTIONS of BCRA:
TOPSIDE
1) F. ABRAMS for McCONNELL PLAINTIFFS/**35 mins.
2) L. GOLD for AFL-CIO/15 mins.
3) J. SEKULOW for MINOR PLAINTIFFS/10 mins.
BOTTOMSIDE
1) DEP. CLEMENT for FEDERAL DEFENDANTS/40 mins.
2) S. WAXMAN for INTERVENOR-DEFENDANTS/20 mins.
NOTE: **Those counsel who may reserve and deliver rebuttal.
Please, contact me if you have any questions or concerns.
Sincerely,
Denise McNerney/Merits Clerk
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Friday could be a big day for recall litigation On Friday, Judge Vogel is holding a hearing on the section 5 case involving Monterey county. There's no doubt from reading his earlier orders (available at the Findlaw recall page) that he feels bound to prevent Monterey county from taking any further steps in the recall process (including sending out absentee ballots) until the Department of Justice in Washington D.C. grants preclearance. We are getting very close to the time that such ballots need to go out (indeed, the time for overseas ballots to go out may have already passed). We could see the judge enjoin the entire election until preclearance is granted.
I have heard another possibility. One of the challenges in Monterey county relates to that county's decision to consolidate precincts. This is being done to save money and labor, but the allegation is that the consolidation will put minority voters in a worse position than they would have been in before consolidation. I heard that the county might offer to reverse itself on consolidation. That still leaves preclearance issues related to the inclusion on the ballot of Proposition 54 (the "racial privacy initiative"). I do not know if, assuming the consolidation issue could go away, whether the county could print ballots for the recall, but leave off the Proposition 54 question, and what that would mean for the rest of the state. Presumably, if Monterey cannot vote on Proposition 54 at this election, no part of California can.
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"Corporate donations defended; Schwarzenegger says gifts won't sway his actions" The Sacramento Bee offers this report. The newspaper also features "Pollsters Foresee Record Turnout."
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"Texas Legislature Adjourns Special Session; Governor to Call Members Back a 3rd Time to Force Vote on GOP Redistricting Plan" The Washington Post offers this report.
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Why no preclearance challenge in Yuba? A.P. offers this report, which explains why.
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Tuesday, August 26, 2003
ACLU files appeal in Ninth Circuit over the selective use of punch card ballots in recall election As promised, the ACLU has appealed the decision of a federal district court's order denying a preliminary injunction to delay the recall election until elections officials could insure that punch card ballots would not be used (the latest that this would be is March 2004, when, pursuant to a consent decree the state has agreed to eliminate the use of punch cards). Here is the ACLU's summary of the argument from their brief (footnotes omitted)
There are three questions on this appeal. First, is the plaintiffs’ suit barred by res judicata or laches? The district court discussed this question but expressly declined to decide it. Order, ER 208, 209. Neither res judicata nor laches applies here. Res judicata does not apply because plaintiffs are bringing a new and distinct claim that was not part of, and could not have been part of, the earlier suit. The prior judgment required defendant to replace all punchcards by March 2004, and this action in no way disturbs that judgment. Res judicata “prevents a party from litigating in a subsequent action any matter that was a part of the same claim or cause of action adjudicated in a prior action. These rules preclude from litigation any part of the claim that might have been litigated.” Larry Teply & Ralph Whitten, Civil Procedure 872 (1994) (emphasis in original); Western Radio Serve. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). Plainly, an equal protection and Voting Rights action predicated on the extraordinary election subsequently scheduled for October 2003 – a point in time at which some but not all parts of California would have been ready to count ballots through methods more accurate by far than the punchcard systems that would then have been replaced in some counties but not yet in others – was not, because it could not possibly have been, part of the earlier litigation. Even if the parties to that litigation are now to be credited with remarkable clairvoyance, no Article III court would have been empowered at that point in time to render an authoritative resolution of a potential future dispute that had not yet ripened into an actual case or controversy. More important still, the unique characteristics of the recall election raise the identified deficiencies of punchcard systems to a qualitatively different level, presenting an altogether new claim under equal protection and the Voting Rights Act.
Second, did the district court err in denying plaintiffs’ request for a preliminary injunction? The court correctly acknowledged that plaintiffs will be irreparably injured in the absence of preliminary injunctive relief, because there is no “effective remedy that would be available to Plaintiffs after the votes have been cast.” Order, ER 220. However, the court misapprehended the nature of plaintiffs’ constitutional claim, misapplied the Voting Rights Act, and seemingly failed to grasp the supremacy of substantive federal constitutional and statutory dictates over a procedural state rule governing timing. In elevating a state constitutional provision establishing the time periods for holding a recall election after certification of petitions above the core federal demand of equal treatment under the law, the district court plainly abused its discretion.
Third, did the district court err in declining to give separate consideration to plaintiffs’ claims with respect to the vote on the ballot initiatives? Whatever the balance of equities may be as to when the recall election should be scheduled, the district court abused its discretion by failing altogether to distinguish an election over whether to remove a sitting governor from an election over two initiatives, previously set for March 2004. The court dismissed in a brief footnote plaintiffs’ contention that the case for postponing the vote on the initiatives was even more compelling than for postponing the recall election, without considering, in particular, the racial character of Proposition 54, and the failure of the opposing parties to suggest any reason why the vote on the initiatives should not be postponed until the decertified machinery has been replaced.
What happens next? The case will go to a motions panel of three Ninth Circuit judges (Chief Judge Schroeder, and Judges Tashima and Hawkins), who will have to decide whether to grant the ACLU's request to expedite the appeal. Depending upon what happens, either this motions panel or another panel will hear the appeal. Likely the court will set some kind of expedited schedule, set the case for oral argument, and issue a decision in relatively short order.
What are the chances of success? I think the ACLU raises a strong equal protection claim. Indeed, I felt so strongly about the equal protection issue that I filed an amicus curiae letter (on my own behalf---without any compensation) supporting that position in the district court, and plan to ask the Ninth Circuit for permission to do the same. I think there are some serious errors in the district court's equal protection analysis. Once my brief is filed, I will post a link so that interested readers can see my arguments.
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Interesting initiative case out of South Carolina See Douan v. Charleston County Council. Ed Feigenbaum described it to me as follows:
South Carolina Supreme Court unanimously overturns Charleston County's half-cent
sales tax referendum because, inter alia, "the title and instructions to the voters appeared to advocate passage of the tax." The ballot language referred to the sales tax as "the traffic congestion relief, safe roads and clean water sales tax." According to the ruling, "The voter instructions here appear calculated to persuade and ultimately mislead voters into voting in favor of the tax by obscuring the fact that a vote for clean water was a vote for (the) increased sales tax."
County officials were also under fire for distributing fliers promoting passage of the tax at the polls during the election, but the justices, while noting their concerns about the circumstances, found that this issue was moot because of the ballot language.
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"Bid for Texas Redistricting Fails Again" A.P. offers this report.
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More on the Bustamante $300,000 contribution It now appears (see this San Jose Mercury News article (link via Dan Weintraub)) that Bustamante is not going to be using that $300,000 to fund the "no on recall" parts of his advertising campaign. Apparently the money is going into an old account of Bustamante's (when he ran for Lt. Governor) and then transferred into his new campaign account. From the article:
FPPC officials said transferring money between the two Bustamante committees is legal under accounting rules approved by the commission after voters approved Proposition 34 in 2000. Those rules say a committee that existed before Nov. 6, 2002, when the limits went into effect, can continue to raise money and transfer those funds -- as long as the dollars transferred are ``attributed'' to individuals who made donations before that date. No more than $21,200 can be attributed to any single donor. And any attribution may not be greater than the amount the donor actually gave to the old committee.
By way of example, the $300,000 the Sycuans gave Bustamante could be ``attributed'' in equal amounts to 14 people who gave at least $21,200 to Bustamante last year, even though they had nothing to do with the tribe's current donation.
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The evisceration of contribution limits in the recall race Early on, the Fair Political Practices Commission in California took the position that no contribution limits apply to contributions to committees supporting or opposing the recall. But contributions to committees supporting or opposing candiates for governor are subject to a $21,200 individual limit. What to do about an advertisement that says, for example, "No on recall, yes on Bustamante?" The issue has become particularly salient given that Bustamante has just received a $300,000 contribution from an Indian Tribe. (See Dan Weintraub's post).
The FPPC's answer is reminiscent of how the FEC has treated party spending in the 1990s. Just as the FEC required parties to use an allocation of "hard money" and "soft money" funds for certain expenditures, here's what the FPPC says in this July 2003 document:
14. If an expenditure by a replacement candidate both promotes his or her candidacy and supports the recall, may the expenditure be apportioned between the candidate's ballot measure committee and his or her candidate committee for office? Yes. If a candidate can clearly show that a part of an expenditure relates solely to the ballot measure issue, the ballot measure committee may pay for that cost. Where such a showing cannot be made, the expenditure must be paid for by the candidate's committee for office. (Sections 85200-85201).
So expect a lot of evasion of contribution limits, and perhaps a fair bit of litigation, on how this allocation rule is to work.
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More preclearance recall litigation The Fresno Bee reports here that MALDEF has filed another suit under Section 5 of the Voting Rights Act raising preclearance objections (under section 5 of the Voting Rights Act) to the inclusion of Proposition 54 on the ballot in Kings and Merced counties. The earlier litigation involved only Monterey county, and this litigation does not appear to involve Yuba county, the other county covered by preclearance. Why the piecemeal approach? Perhaps to drag things out; perhaps to get more chances before different judges?
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"Panel Completes Its Plan to Revamp Voting in the City" The New York Times offers this report, which begins: "The Charter Revision Commission approved a measure last night to be placed before the voters in November that would end political primaries for municipal offices and establish nonpartisan elections. The move could pave the way for the most significant changes in New York City elections in nearly a century."
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"Exiled Texas Democrats Stand Firm in Redistricting Fight" The Wall Street Journal offers this report. Thanks again to Steven Sholk for the pointer.
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"Presidential Campaign Law is Beginning to Show Its Age" The Wall Street Journal offers this report. Thanks to Steven Sholk for the pointer.
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Monday, August 25, 2003
More APSA campaign finance panels In addition to the panels described here, I received the following from the Campaign Finance Institute:
The Campaign Finance Research Group will sponsor two panels at the upcoming APSA convention in Philadelphia, both on Friday August 29.
The Campaign Finance Research Group is supported by the Campaign Finance Institute, a nonpartisan research institute affiliated with George Washington University.
EXPERT WITNESSES: The first panel will hear from political scientists who have been expert witnesses for both sides in the court case of McConnell v FEC, the constitutional challenge to the Bipartisan Campaign Reform Act of 2002 (also known as McCain-Feingold.)
They will focus on what it is like to be an expert witness rather than reargue the merits of the case.
IMPACT OF BCRA ON 2004: The second panel will be about the potential impact of the law on the elections of 2004. This panel is in honor of a new book to be released by
Rowman & Littlefield at the convention,
Details of the panels are below.
Morning Panel:
Roundtable on Political Scientists as Expert Witnesses
Testifying on the Bipartisan Campaign Reform Act
Date: Friday, Aug 29, 8:00 AM
Chair:
Diana F. Dwyre, California State University
Participant(s):
James L. Gibson, Washington University
Kenneth Goldstein, University of Wisconsin, Madison
Jonathan S. Krasno, Yale University
Raymond La Raja, University of Massachusetts, Amherst
David B. Magleby, Brigham Young University
Sidney M. Milkis, University of Virginia
Frank J. Sorauf, University of Minnesota
Afternoon Panel:
Life After Reform: Perspectives on the
Presidential Election of 2004
Date: Friday, Aug 29, 2:15 PM
Chair:
Michael J. Malbin, Campaign Finance Institute
Author(s):
The Invisible Primary: A Preliminary Report
about Donors and Candidates
John C. Green, University of Akron
After New Hampshire: The Risks and Rewards of
Public Funding with Spending Limits
Michael J. Malbin, Campaign Finance Institute
The National Political Parties After the Bipartisan
Campaign Reform Act
Robin A. Kolodny, Temple University
Business and Labor
Clyde Wilcox, Georgetown University
Issue and Advocacy Organizations
Robert G. Boatright, Campaign Finance Institute
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"Campaign Finance Law Attacked" See this report on legal challenges to Colorado's Amendment 27.
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"The money machine kicks into high gear" The Sacramento Bee offers this recall-related report. See also this A.P. report.
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Sunday, August 24, 2003
"McCain-Feingold Will Wreck American Politics" Ken Starr offers this Wall Street Journal oped. Thanks to Steven Sholk for the pointer.
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Friday, August 22, 2003
Findlaw posts more Partnoy documents See Judge's order and amended final judgment.
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"Exit Strategy" The Recorder has a very interesting article today on judicial appointments by Governor Davis in advance of his possible recall. Unfortunately, the article is not available on-line without a paid subscription.
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Supreme Court denies NRA and Paul request for reconsideration of oral argument order in BCRA case See the order posted today but dated August 19. It appears that briefing is now complete. Next stop: four hours of oral argument on Monday, September 8.
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With a Davis resignation not out of the realm of possibility, previously obscure election law questions may become quite important Today comes "Davis Inches Toward Backing Bustamante" on the front page of the Los Angeles Times. I have little doubt that if Davis continues to perform poorly in the polls, pressure (from the Democratic party and from some editorial writers at newspapers) will mount on him to resign. Davis cannot derail the recall election by resigning. But there are two significant open questions:
1. If Davis resigns, will part 1 of the ballot still appear, or will there just be a part 2 election on the successor?
2. If Davis resigns, Bustamante takes over as governor until a successor is chosen, and Bustamante is not the successor, does Bustamante go back to being Lt. governor?
This CNSNews.com report is the most in depth discussion of these issues so far that I have seen. I have previously cited to this material, but readers continue to raise these questions.
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Will abstentions on part 1 of the ballot count as yes or no votes? According to Scott Rafferty (in a post here), the judge hearing the Partnoy complaint in San Diego federal court "had previously held that abstentions would not be
counted in determining whether there was a majority in favor of recalling the governor, which could have allowed a minority to recall Davis. He has vacated this aspect of his ruling. The Constitution requires a majority on the question." Scott also reports that the state plans to appeal, under a provision of state law mandating an appeal of any ruling that strikes down a state statute as unconstitutional.
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Thursday, August 21, 2003
"San Francisco Wins Voting-System Suit" The Los Angeles Times offers this report.
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Which Ninth Circuit panel will hear the ACLU's appeal in the punch card recall suit? Howard Bashman offers some insight here. (Disclosure: I plan to file an amicus brief supporting the ACLU in this case.)
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"Stations weigh what's 'fair'*With 135 gubernatorial candidates, equal-time regulations handcuff many outlets" The Los Angeles Times offers this report.
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"Think Florida Was an Electoral Zoo in 2000? Watch California" Newhouse News Service offers this report.
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TRB on McCain-Feingold and the Democratic appointment to the FEC See this New Republic article.
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APSA panels on election law issues Dan Lowenstein passes along the following (from the election law listserv):
As many of you know, the annual meetings of the American Political Science Association will be held next week in Philadelphia. The convention begins Thursday morning and ends Sunday morning. For people interested in the issues discussed on this listserv, the APSA meetings are of considerable value and interest. There is a huge number of panels and roundtables on a great variety of topics and, as Steve Shiffrin once said, the book exhibit is the best book store in America.
The Law and Political Practices Study Group will be co-sponsoring two panels of particular interest to this list. One, which begins at 2:15 on Thursday, will be a roundtable on the BCRA case that is pending in the Supreme Court (McConnell v. FEC). That was originally planned as a panel in which Richard Briffault, Rick Hasen, and Scot Powe would present papers on the Supreme Court's decision. Richard, Rick and Scot having declined to write papers on the flimsy ground that the Supreme Court has not yet decided the case, we have converted the panel to a roundtable in which they will be joined by Bruce Cain, and I will serve as chair.
The other LPPSG panel will be held Saturday at 2:15 and will feature papers by Steve Ansolabehere and Jim Snyder (redistricting); Robert Mutch (corporations and elections); and Mark Rush (racial gerrymandering). Nate Persily and John Petrocik will be discussants and John Shockley will chair. ....
For complete information about the program at the Convention, use [this] link. But note that one thing you will not find is room numbers for the various panels. Those are available only in the official programs. That is the APSA's way of getting people to register for the meetings and pay the fee. Badges (which require registration) are also required for entry to the book exhibit. ...
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"She's at the center of high tech voting debate" The Seattle Times offers this report. Thanks to Bill Huennekens for the pointer.
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BCRA reply briefs due today I'll post links when I have them. UPDATE The Campaign Legal Center has posted some of the briefs (ACLU, Adams, Echols, and NRLC) here. UPDATE 2: It looks like all the reply briefs are now there.
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More on Florida McCarty/Stone investigation See this report. (Thanks to Alfredo Garcia for the pointer).
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Wednesday, August 20, 2003
Recall litigation news stories See stories in: the San Francisco Chronicle; the Los Angeles Times; the Sacramento Bee (A.P. story); more to come in the morning. UPDATE: More stories in: the Contra Costa Times; the San Diego Union-Tribune; the Sacramento Bee; the San Jose Mercury News; and the Los Angeles Times (updated report).
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Interesting Ninth Circuit Voting Rights case today The court decided Green v. City of Tuscon. The MetNews summary: "Provision of Arizona law conditioning vote by residents of community seeking incorporation on consent of all existing municipalities of 5,000 or more inhabitants within range of six miles treats all residents of community equally and is not subject to strict scrutiny under equal protection. Provision is rationally related to Arizona’s legitimate interest in regulating establishment of new municipalities and protecting interests of existing ones, and does not violate equal protection requirements."
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A bit of analysis on Judge Wilson's punch card decision I have now had a chance to read through the judge's opinion once. These are still preliminary thoughts. The opinion is divided into three parts.
1. Res judicata. The judge held that there was a sufficient identity of the parties and interests in the suit to the parties in the Common Cause v. Jones litigation (also before Judge Wilson) should have raised concerns earlier about punch cards (the parties settled with an agreement to phase out punch cards by March 2004). To do so now, the judge says, is too late. Though not probable, the judge said it was possible that there could have been a recall election using these rules before March 2004.
2. Equal protection. The res judicata grounds were sufficient to find for the government. But in the alternative, the judge reached the merits. He first rejected the equal protection rationale under the Fourteenth Amendment of the United States Constitution. He held that punch card voting could be upheld if the standard for review of the equal protection claim is rational basis review (a standard of review very deferential to the state.) He then held that the use of punch cards could be upheld even under strict scrutiny (a much less deferential standard of review).
Here is his operative analysis:
If rational basis review applies, the State might well be able to adduce sufficient justifications for the use of punch-card balloting machines. See, e.g., Bush, 531 U.S. at 134 (Souter, J., dissenting) ('[E]ven though different mechanisms [within a jurisdiction] will have different levels of effectiveness in recording voters' intentions[,] local variety can be justified by concerns about cost, the potential value of innovation, and so on."); Richard L. Hasen, "Bush v. Gore and the Future of Equal Protection Law in Elections," 29 Fla. St. U. L. Rev. 377, 395-96 (2001).
As this Court noted in Common Cause v. Jones, however, it is possible to read Bush as implying, or at least employing, an elevated standard of review. See Common Cause v. Jones, 213 F. Supp. 2d 1106, 1109 (C.D. Cal. 2001). To the extent that the use of such a standard would be in tension with the Supreme Court's prior voting rights jurisprudence, there are many reasons to believe that the Bush Court's analysis was limited to its unique context.
For instance, the Court concluded that the challenged recount process was "inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer." 531 U.S. at 109 (emphasis added). Indeed, the Court continued, "[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities . . . . The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." Id.; see also Spears v. Stewart, 283 F.3d 992, 996 (9th Cir. 2002) (Reinhardt, J., dissenting) (suggesting majority's rule is like that of Bush: "good for this case and this case only"); Sorchini v. City of Covina, 250 F.3d 706, 709 n.1 (9th Cir. 2001) (per curiam, Kozinski, Tallman, Zapata, JJ.) (citing Bush for proposition that particular argument is persuasive "only in this case").
Regardless, this Court specifically did not decide in Common Cause what standard of review would apply to a challenge levied against the certification of punch-card voting machines with disproportionately high error rates. See Common Cause, 213 F. Supp. 2d at 1109. It need not do so here.
Plaintiffs in this case bring a far narrower subset of the challenge that was brought in Common Cause. The plaintiffs in the earlier suit challenged the Secretary of State's decision to certify punch-card machines for use in California. In other words, they contested the use of punch-card machines in general. Had that case gone to trial, the State would have been required to demonstrate sufficient justifications for the use of punch card machines in general.
Since that suit was brought, however, the Secretary of State has decertified punch-card machines effective March 2004. Plaintiffs in this case do not - indeed, cannot - challenge the use of punch-card machines generally, but rather contest their use in this election.
Thus, even if the Court were to reach the merits of Plaintiffs' equal protection claim, the State would not be obligated to justify the use of punch-card machines as a general means of gauging voter preference. Rather, the State would merely need to adduce sufficient justifications for their use in this election.
That, the State undoubtedly can do. Alternative technologies will not be available in several of the affected counties in time for the October election. Because the State cannot under its own constitution conduct the election later than the date currently set, and short of a court order compelling something different, the State's choice is between using punch-card machines in several counties and using nothing at all in those counties. The State clearly has a compelling interest in not disenfranchising the voters of at least six counties, and the limited use of punch-card voting in this election is a narrowly tailored means to achieve that end. Accordingly, whatever the appropriate standard of review, Plaintiffs are unlikely to succeed on the merits of their constitutional claim.
3. Claim under section 2 of the Voting Rights Act. From the opinion: "Plaintiffs allege that punch-card machines are used in counties with disproportionately large minority populations, and thus that the machines' allegedly higher error rate 'results in a denial or abridgement of the right . . . to vote on account of race or color,' in violation of Section 2(a) of the Voting Rights Act (codified at 42 U.S.C. § 1973(a))." Here is the conclusion of the court's section 2 analysis:
In sum, Plaintiffs suggest a Voting Rights Act violation based exclusively upon the alleged error rate of machines that poll 'majority' as well as minority voters, and are used in counties containing nearly one-half of California's voters. They contend that some 40,000 votes may be lost as a result of higher error rates (many if not most of which votes will be cast by non-minority voters) in a state of nearly eight million voters. Accordingly, there is, at best, a slim chance that Plaintiffs will be able to prove that punch-card machines in California 'interact[] with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.' Gingles, 478 U.S. at 47; accord Voinovich, 507 U.S. at 153."
Analysis I haven't had a chance to think much about the res judicata or section 2 issues yet. But on the equal protection claim, I believe the Court is wrong under strict scrutiny that the punch card balloting in some counties rather than others in this recall election satisfies equal protection concerns. Although there are many flaws with the argument (flaws I intend to point out in an amicus brief to be filed in the Ninth Circuit once the ACLU appeals), let me make one particular point. The court seems to assume that, given California law, the choice is either to allow punch card voting in some counties only or allow no voting at all in those counties---because there is no alternative to using punch cards in those counties for an October 7 election. The court thus treats California law setting the election date as sacrosanct. It should not be so. At least under strict scrutiny, the state provision setting the date of the election should not stand in the way of remedying an otherwise unconstitutional election.
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Other news reports on ACLU ruling Los Angeles Times. The CNN report is here.
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Judge Wilson's order now posted here.
Analysis to follow.
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A.P now offers this report.
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A quick glance at the opinion I am on a quick break from class. The court rests on res judicata (the issue was already decided, or could have been decided, in the earlier litigation). Alternatively, the court holds that plaintiffs have not shown there is a sufficient chance they will succeed on their equal protection or Voting Rights Act violation claims.
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Judge Wilson has denied TRO request in ACLU case This according to a local television report. More to come. CNN is now also reporting, as is KCBS radio in San Francisco. I am off to class. More details after I have had a chance to see the opinion.
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"Prop 54 Foes May Sue Over Donors" The Sacramento Bee offers this report (link via Votelaw blog.
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More on preclearance recall questions The DOJ's August 19 letter is here on Findlaw. See also this Sacramento Bee article.
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Decision expected today in ACLU punch card recall voting case Judge Wilson noted at the Monday hearing that he hoped to rule today in the suit. (Disclosure: I filed two amicus letters supporting the plaintiffs in this case.) UPDATE: I hear rumors that the opinion could be out within an hour or two (I am writing this at 10:45 am PDT). I have no idea whether these rumors are to be believed. When the California Supreme Court issued its opinions a few weeks ago in the recall cases, we were told that the opinions would be released at 1 pm---they did not come out for some hours later.
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"L.A. County Braces for Higher Voter Turnout" The Los Angeles Times offers this report.
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"RECALL REVIEW: Justice Department still assessing Monterey County's consolidation of precincts" This report from the Monterey Herald confirms what I had suspected: the Justice Department's decision to preclear the recall rules does not mean that the recall election will go forward on October 7 as scheduled. Additional preclearance must first come from DOJ. See also this A.P. report.
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Mickey Kaus on competing recall reform plans Kaus contrasts Bruce Cain's recommendations and my recommendations for fixing the recall process next time here.
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"Analysis: Playing hardball on 'soft' money" UPI offers this report.
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BCRA (McCain-Feingold) Reply Briefs Due Tomorrow Tomorrow the final set of briefs are due in the United States Supreme Court. These are plaintiffs' reply briefs. Oral argument is set for September 8. (Disclosure: I filed an amicus brief supporting defendants in the case.)
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"Voting Study Leader Admits Conflict of Interest" The Atlanta Journal-Constitution offers this report, which begins: "A Johns Hopkins University researcher acknowledged Tuesday that he had a financial stake in a competitor when he co-authored a study declaring Georgia's touch-screen voting system 'fundamentally flawed.'" Thanks to Howard Bashman for the pointer via e-mail. UPDATE: The Votingtech discussion group has had an interesting exchange on these issues. See here for the archive of August messages.
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Tuesday, August 19, 2003
"Pasadena City Council Rejects Instant Runoff" The Pasadena Star-News offers this report.
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Gubernatorial candidate responds to my suggestions to change rules for recall next time See Mark Valdez's blog post here.
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Two amicus letters from me to judge hearing the ACLU punch card case I have submitted two letters to the district court hearing the ACLU case, supporting the ACLU's position. Here is my first letter; the second letter appears in the post below this one.
I hereby request permission to file this letter brief amicus curiae in support of plaintiffs in the above-referenced case.
I am an election law professor at Loyola Law School in Los Angeles. I am the author of numerous books and articles on election law, and co-editor of the peer-reviewed quarterly publication, the Election Law Journal. I have attached my c.v. providing the relevant details of my background. I write to bring to the Court's attention a law review article and casebook supplement discussing the issue of equal protection claims raised in connection with the use of punch card voting.
1. Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 FLA. ST. U. L. REV. 377 (2001). This article discusses the punch card question on pages 393 to 398. On the question, I conclude the following:
In the [punch card] hypothetical, there is little question that the use of different voting systems with different error rates treats voters differently and makes it less likely that voters in punch card districts will cast votes that count. Voters in counties using optical scanning equipment have a much better chance of having their votes counted than those in counties using a punch card ballot system. The disparate treatment is all the more disturbing to the extent that it correlates with wealth, looking functionally like the poll tax the Court struck down in Harper. Under strict scrutiny, this disparate treatment in the counting of votes appears just as "dilutive" of the right to vote and just as "arbitrary" as the different methods of recounting votes struck down in Bush v. Gore. There is no compelling interest for the different treatment; a decision about resource allocation by localities should not be able to trump a "fundamental right."
Furthermore, it appears irrelevant that the choice of voting machine technology was not the product of intentional discrimination or animus against any voters or groups of voters. In Harper, the Court held that a poll tax is unconstitutional even absent evidence that its intent was to discriminate against voters on the basis of race or wealth. In Bush v. Gore, the Court did not base its holding on intentional discrimination by Florida officials (or the Florida Supreme Court). In sum, if Bush v. Gore indeed has precedential value, it clearly should apply to prevent the use of these different voting systems in the same election. Different voting systems function in the same discriminatory manner as different means to count votes in a manual recount.
The result of this case might be different if a court applied only a rational basis standard to the different procedures. The decision of which voting systems to use appears to be a resource allocation decision that a court could deem a legitimate one. Nonetheless, Bush v. Gore appears to mandate strict scrutiny, not application of rational basis review.
Id. at 395-96 (footnotes omitted).
On page 398 of the same article I discuss the benefits of courts deciding such equal protection challenges before an election in which such problems may arise:
With that conclusion, a word here is in order about remedies. There may be a difference between a challenge to a voting procedure or election mechanism before an election takes place and a postelection challenge seeking to throw out the results of a vote or recount or to demand a revote. Even if each of these five hypothetical lawsuits presents violations of the Equal Protection Clause, the appropriate remedy may not be to void an election or the results of a recount or to require a revote. Courts may be uncomfortable with remedies that overturn elections. In the third hypothetical, for example, a court could rule that the recount violates equal protection but that Smith’s claim is barred by laches: she should have sought an injunction preventing the manual recounting of the votes under existing state law. In the actual butterfly ballot case, the trial court ruled that a revote in Palm Beach County alone would violate the Constitution’s requirement of a uniform election day for presidential electors. Thus, if Bush v. Gore has any precedential value at all, it may have such value primarily when used prospectively to change election practices.
2. Daniel H. Lowenstein and Richard L. Hasen, Election Law---Cases and Materials 2003 Supplement. Page 9 of the supplement discusses Black v. McGuffage, 209 F. Supp. 2d 889 (N.D. Ill. 2002), the only case I am aware of that discusses whether the use of punch card voting in a statewide election for some counties but not others constitutes an equal protection violation.
For the court's convenience, I attach a copy of the law review article and the cover and page 9 of the casebook supplement.
I wrote this letter on my own initiative because of the importance of the issues involved. I have asked counsel for the plaintiffs to assist me with filing this letter brief because they are familiar with the procedures attendant on court filings. In addition, my institutional affiliation is listed for identification purposes only.
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The second amicus letter
With this Court’s permission I hereby submit this letter to supplement my August 18, 2003 letter amicus curiae in support of plaintiffs in the above-referenced case.
In the earlier letter, I provided a copy of and quoted from a portion of a law review article I had written applying the Supreme Court’s equal protection holding of Bush v. Gore to a hypothetical situation involving the use of punch card balloting in some counties but not others in a statewide election. My earlier letter made the point that a plaintiff arguing that punch card voting violates equal protection principles under Bush v. Gore need not show that the state intends to discriminate against any class of voters; it is enough that the plaintiffs prove that the higher error rate for punch card balloting compared to other voting technology values some persons’ votes over that of others.
I neglected, however, to add the following crucial point: Unlike the hypothetical situation involving the use of punch card voting a garden variety election, the equal protection problems here are seriously aggravated by the particular facts of the recall election. The second part of the recall ballot will list 135 candidates for governor, the winner to be chosen by a plurality vote (meaning that whoever gains the most votes is the new governor—assuming the current governor is recalled in the first part of the balloting—regardless of how low a percentage the highest vote-getter receives). With six or seven candidates currently considered “serious” by the media and many others potentially to emerge from the group of 135 candidates, the chances of a close election are much higher than normal, meaning that the higher error rates in punch card balloting could make a real difference to the outcome of the election.
In addition, there will be pressure on voters to cast votes quickly, compounding the chances for error with punch card ballots. No doubt, the time taken to cast a ballot will be higher than normal. It will take voters—particularly those voters with poor eyesight or difficulty reading—some time to wade through the list of the 135 candidates on the ballot, listed, pursuant to state law, randomly on the ballot (rather than alphabetically or in order of perceived chances of success). In counties such as Los Angeles, that is consolidating 5,000 precincts down to 1,800, the time it will take to vote will be increased further. Turnout is also predicted to be high. We can expect long lines at the polling place.
The bottom line is this: the chances of someone in Los Angeles (and other counties using punch card ballots) being able to cast a vote that actually counts is going to be much lower than the chances facing someone voting in a county using more reliable voting equipment, especially in counties using superior technology and not consolidating their precincts. These facts make out an equal protection violation, one that predates Bush v. Gore. As the Supreme Court held in United States v. Classic, 313 U.S. 299, 315 (1941), “Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted….” (Emphasis added.) See also Reynolds v. Sims, 377 U.S. 533, 554-55 (1964).
As with my prior letter, I wrote this letter on my own initiative because of the importance of the issues involved. I have asked counsel for the plaintiffs to assist me with filing this letter brief because they are familiar with the procedures attendant on court filings. In addition, my institutional affiliation is listed for identification purposes only.
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Interesting false campaign speech case The Charlotte Observer offers this report (link via How Appealing).
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"Political money to the test" The New York Times offers this editorial.
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Recall lawsuit news and views The Los Angeles Times offers "U.S. Review Is Unlikely to Delay Recall Election*But Monterey County's plan to combine polling places may face Justice Department hurdle" and "Judge Puts Off Decision on Whether to Delay Recall Election." The Sacramento Bee offers "Recall Clears Federal Hurdle." The San Francisco Chronicle offers "Oct. 7 recall election date OKd; Timing 'is not a problem,' Justice Dept. reportedly says ." The San Jose Mercury News offers "U.S. near to clearing Oct. 7 for election; JUSTICE DEPARTMENT PONDERS PROP. 54 ON BALLOT." The Washington Post offers "Justice Dept. Declines To Intervene in Recall." The New York Times offers "Ruling Expected on Effort to Delay California Recall Election."
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The Partnoy recall suit is not over Scott Rafferty, a Davis supporter who is attempting to intervene in the Partnoy recall suit in San Diego (over the provision of California election law---already struck down in the suit---counting the votes in part 2 of the recall only of voters who vote in part 1), explains here the procedural posture of the case and arguments he is making to try to prevent the recall from going forward or to change some of the recall rules.
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Monday, August 18, 2003
Partial preclearance granted in recall A.P. reports here that the Justice Department has precleared the recall rules, but it has not precleared the rules yet regarding initiatives---leaving open the question whether Prop. 54 can appear on the ballot. As I understand it, this could still delay the recall election---Monterey is now enjoined from sending out overseas absentee ballots and other absentee ballots. Given preclearance on the recall, the judge could now allow Monterey to send out a ballot that lists the recall questions but not Prop. 54. Would that make sense? Would it be followed by a second ballot listing Prop. 54? It is not clear to me that the judge will let anything go forward until this is all ironed out.
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Interview on "Which Way, L.A.?" I should be on for a short interview about the federal court cases tonight at 7, on KCRW. (I think a webcast should be available for those outside the Los Angeles area at KCRW.com.)
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More on ACLU TRO Hearing My colleague Karl Manheim attended the oral argument and reports that the judge announced he will rule on the ACLU's request for a TRO by Wednesday. Karl will post some comments later and I plan to link to them. It sounds like the case could come out either way. UPDATE: A.P. now offers this report. UPDATE 2:: Karl's comments are here.
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Findlaw has posted more recall documents available here.
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The other federal lawsuit While we are waiting to see what happens with the ACLU case here in Los Angeles (I'll be teaching, and unfortunately unable to attend the hearing), don't forget about the other TRO issued by Judge Fogel, which apparently will enjoin sending any absentee or overseas ballots in Monterey until the Department of Justice in Washington DC grants preclearance. A reporter told me that a Justice Department person told him it could be at least a couple of weeks before that happens. If that is true, it is hard to see the election coming off on October 7.
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A different California recall; a different lawsuit See this Los Angeles Times report on litigation over a recall election in the city of Lynwood, California. UPDATE: A reader writes in to say that a judge denied a TRO request to cancel the Lynwood recall. Thanks for writing!
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"Nonpartisan in New York: Plan emerges" The New York Times offers this report. Thanks to Luke McLoughlin for the pointer.
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New article on voting rights for people with disabilities Professor Michael Waterstone of the University of Mississippi law school has just published "Constitutional and Statutory Voting Rights for People with Disabilities," 14 Stanford Law and Policy Review 353 (2003). This is a very interesting paper that provides a good overview of the complex statutory and constitutional landscape for evaluating the intersection of election law and disability law.
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My oped on five ways to fix the recall process next time The Daily Journal has published my oped on this topic (giving it a terrible title). You can access a copy of it here.
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Hearing on ACLU TRO request at 1:30 today before Judge Wilson More details as they become available.
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George Skelton column See here from today's Los Angeles Times.
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"Where Parties Select Judges, Donor List Is a Court Roll Call" See this New York Times article.
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Sunday, August 17, 2003
Ted Costa's papers in the ACLU suit I have now received a pdf file of recall proponent Ted Costa's amicus brief in the ACLU case. Unlike the state's brief, the Costa brief does take the ACLU on on the merits. I've also seen the ACLU's reply that is being filed today. I think the ACLU has the stronger of the arguments on the merits of the equal protection and punch card claims, for reasons I've set forth earlier.
There was one tidbit in the Costa brief introduction that really caught my eye:
[Plaintiffs'] evidence does not establish any constitutional or statutory violation arising from punch-card voting, let alone the compelling showing required for an injunction. Punch-card voting systems are not the pariah that plaintiffs make them out to be. We are not in Florida. California election administrators—none of whom has lent support to plaintiffs’ delaying tactic—have successfully and reliably deployed punch-card systems for over forty years. Despite plaintiffs’ statistical lightshow—remarkable only for its skillful demonstration of how numbers can be manipulated—punch-card systems, properly maintained and deployed, as they are in California, record voter preferences as accurately as other approved devices. More significantly, postponing the recall vote until next March will not improve the accuracy of the count; it may well diminish it. That is because to comply with the Common Cause consent decree, Los Angeles County will be forced to roll out an untested, never-before-used, barebones optical scan system that will lack all the attributes that plaintiffs’ experts say make optical scanning so desirable. The situation will be worse in other, less populous counties that are committed to deploying systems next March that use ballots which do not have space for 135 candidates who seek the same office.
Suppose the district court accepts both the ACLU's argument and Costa's point. Does this not mean that the election should be postponed beyond March, until the voting technology is substantially of equal validity across California jurisdictions?
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L.A. Times opeds Bruce Cain writes "Do Better Next Time*The state's recall laws clearly could use a little tweaking." Bob Stern and Tracy Westen of the Center for Governmental Stuides offer "Politics as It Was Meant to Be*For once, campaign cash is taking a back seat to media and voter interest.." Kevin Starr offers "Politics, Wired*Recall may be dizzying, but it portends a revolution in governance."
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"Flake looks for a local committee to help" See this article in the Arizona Republic, which begins: "Is Rep. Jeff Flake, R-Ariz., dropping hints about how he can get around a recent Federal Election Commission opinion limiting how much money he can raise for his initiative campaign to repeal Arizona's system of publicly funding political elections?"
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Saturday, August 16, 2003
Analysis of government opposition to TRO in ACLU punchcard suit I have just had a chance to read and analyze the government's opposition to the TRO in the ACLU punchcard suit. (The complaint is here and excerpts from the government opposition are in the post immediately below this one. The first amended complaint and the ACLU's points and authorities supporting the TRO and not yet posted anywhere.)
The opposition is most remarkable for what it does not do. The government concedes that punchcard voting is "antiquated," but states only summarily argues that the use of punch cards in the recall election is unconstitutional. Its main argument against the TRO is the procedural point that the consent decree binding on the parties in the earlier Common Cause v. Jones case (decertifying punch cards beginning with the March 2004 election) should preclude this litigation---even though different plaintiffs were involved with the two suits. (The argument is that the parties' interests are closely enough aligned that should preclude this additional suit.) The government also points to education efforts that the Secretary of State promises to make about the proper way to vote a punch card ballot.
The government hardly offers a substantive argument under either the facts or the law. The closest the government seems to come to a substantive analysis of the facts is its point that since the consent decree, "the primary and general elections were held in 2002, and various local elections have been held in the six counties that use the [punchcard] machines. In addition a well-publicized recall election took place in the City of South Gate in January 2003, without objection regarding the use of the [punchcard] machines."
Of course, these elections are very different from the recall election. Here, we likely have a much closer election (because of the large number of candidates and the plurality rule); we have consolidation of precincts in Los Angeles from 5,000 to 1,800; and we have a very long ballot. Put all those factors together, and the use of punch card voting raises serious equal protection concerns. It will take longer to vote ballots (will more than a single punch card ballot be required for each voter to accommodate the 135 candidates); voters may be confused as to where to go to vote; lines may be long because of precinct consolidation; and there is the conceded higher error rate with punch card ballots. In short, it is much more likely in places like Los Angeles than other counties---counties not using punch cards or consolidating precincts---that voters will cast a vote that actually counts.
None of those factors were present in the 2002 elections. In South Gate, the entire jurisdiction used punch card votes (so there was no disparate treatment across groups of voters) and the election was lopsided. Recall succeeded of four elected officials, by margins of about 80% to 20%; there were similarly lopsided votes for replacement candidates (and few replacement candidates on the ballot).
On the law, the government fails to even mention, much less distinguish, the Black v. McGuffage case, a federal district court case holding that the use of punch card voting in some Illinois jurisdictions but not others in a statewide election violates equal protection. Black relied on Bush v. Gore, another case not even mentioned by the government. Nor does the government brief so much as mention the Section 2 voting rights act claim of the plaintiffs---a claim which is at least plausible, given the disparate impact of the election on minorities, who tend to live in counties using punchcards. See Stephen Ansolabehere, Voting Machines, Race, and Equal Protection, 1 Election Law Journal 61 (2002).
The ACLU has a strong case. If the court reaches the merits at the TRO hearing on Monday, it will be interesting to see what the government will offer by way of response.
UPDATE: A few readers have suggested to me upon reading these comments that I believe the government somehow intentionally made weak arguments here. I don't mean to suggest that and I don't believe it. The government has been pretty aggressive in fighting the other suits, particularly Davis's suit in the California Supreme Court. I just think they have made a strategic decision to fight this on technical grounds (this suit is precluded by earlier suit) rather than fighting it on substance, where before the federal district court judge here perhaps they think they'd lose.
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Excerpts from Government Opposition to TRO in ACLU Punchcard suit
2. Plaintiffs Cannot Demonstrate A Likelihood Of Success On The Merits
The First Amended Complaint is simply an attempt to collaterally attack the
consent decree entered into between plaintiffs and the Secretary of State in 2002. (Pl.
Ex. 5.) On February 19, 2002, when Judge Wilson signed the order requiring the
parties to lodge a consent decree within seven days of that date,4/ plaintiffs were well
aware of the fact that the PPC machines would be used in statewide elections
occurring before March 2004. They were also aware that, prior to March 1, 2004,
there would likely be a number of local elections in the counties that used the PPC
machines. Plaintiffs chose not protest the use of the punchcard systems for those
local elections, nor did they protest when the machines were used for the recall of
three city council members and the city treasurer in the City of South Gate, a
predominantly Latino community in Los Angeles County, in early 2002. Yet, now they
seek to interfere with the People’s reserved right of the recall that is expressly provided
for in the California Constitution,5/ in disregard of the fact that the consent decree was
reduced to a judgment, which plaintiffs did not appeal, and which they are now
precluded from attacking by principles of res judicata. (Rafferty v. City of
Youngstown, 54 F.3d 278, 282 (6th Cir. 1995).)
It appears that plaintiffs filed an amended complaint to add the NAACP as a party
plaintiff to avoid the application of res judicata principles by adding as a plaintiff an
entity that was not a party to the consent decree, on the theory that one who was not
a party to a judgment in a prior action is not bound by it. However, that theory does
not apply when the absent party’s interests were adequately represented in the prior
action. This was the holding in Rafferty, supra, in which white police officers were
held to be bound by a consent decree entered into in a case in which their collective
bargaining representative had been granted leave to intervene as a party-defendant.
The officers’ efforts to attack the consent decree in a separate action was denied on
the ground that they had been adequately represented in the earlier action and therefore
did not have standing to raise a collateral attack on the consent decree. (Ibid.)
In the present case, the NAACP is identified as the nation’s oldest and largest
civil rights organization with a mission to secure and protect the civil rights of people
of color, including the voting rights of African Americans. (FAC, & 12.) The
Common Cause complaint identified plaintiffs Common Cause, SCLC and the
American Federation of Labor and Congress of Industrial Organizations (AAFL-CIO)
as organizations whose members include African Americans. Common Cause states
its goals are to promote fair and honest elections. (Pl. Ex. 1, & 8.) The SCLC stated
that it has always worked to promote the full equality of African Americans in all
aspects of American life, including voting, elections and political participation. (Pl. Ex.
1, & 9.) The AFL-CIO alleged that one of its objectives is to encourage workers to
register and vote. (Pl. Ex. 1, & 12.)
All three entities alleged that their members are adversely affected by use of
PPC voting machines. In addition, two of the named individual plaintiffs in Common
Cause were identified as being African Americans. (Pl. Ex. 1, && 13, 16.) It cannot
be disputed, therefore, that the interests of African American voters were adequately
represented in the Common Cause action. Thus, the addition of the NAACP as a
plaintiff in the instant action does not preclude application of the principle of res
judicata to that plaintiff, as well as to the others, to prevent them now from attacking
the provisions of the consent decree. Moreover, as this Court has already observed,
”[s]tipulations voluntarily entered by the parties are binding.” (Common Cause, et al.
v. Jones, 213 F.Supp.2d 1110, 1112 (C.D. Calif. 2002.)
Although plaintiffs are not so bold as to suggest that the effective date of the
decertification of the PPC voting machines now be moved up to October 1, 2003, they
nonetheless seek the same result by asking the court to issue a preliminary injunction
that would be the functional equivalent: move the election to a date after March 1,
2004. The Court should reject this attempt to avoid the terms of the consent decree.
As was said by a three-judge court convened to hear a challenge by a number of
Latino voters to the legality of the 2000 redistricting plan in California, “enjoining an
election is an ’extraordinary remedy’ involving a far-reaching power [citation] which
is almost never exercised by federal courts prior to a determination on the merits, other
than in cases involving a violation of the preclearance requirement of ' 5 of the Voting
Rights Act.” (Cano v. Davis, 191 F.Supp.2d 1135, 1137 (C.D. Cal. 2001).) The
court denied plaintiffs’ application for a temporary restraining order. (Id. at 1139.)
In fact, defendant is not aware of any cases that have allowed an election to be delayed
in the face of mandatory statutory and constitutional provisions specifying the time
frame for the election. To allow that to happen here, in the face of a consent decree,
which plaintiffs stipulated to and are bound by, would violate basic principles of
equity.
Finally, the fact that plaintiffs seek to move the election to a date after March
1, 2004, can only be construed as a request for a mandatory injunction. As stated by
the court in the Stanley case, where a party seeks mandatory preliminary relief that
goes ”well beyond maintaining the status quo pendente lite, courts should be
extremely cautious about issuing a preliminary injunction.” (Stanley, supra, 13 F.3d
at 1319.) Plaintiff Stanley, the women’s basketball coach at U.S.C., sought an
injunction requiring the university to renew her expired contract and pay her more than
she had made under the contract. (Stanley, supra, 13 F3d. at 1320.) As the court
noted, such injunctions are ”particularly disfavored. [Citation.] When a mandatory
preliminary injunction is requested, the district court should deny such relief, ‘unless
the facts and law clearly favor the moving party.’” (Ibid.) Given the preclusive effect
of the consent decree, neither the facts nor the law clearly favor the plaintiffs.
Because a showing of probable success on the merits is an element of each one of the
various tests for the issuance of a TRO or preliminary injunction, and because
plaintiffs cannot make that showing, the Court should deny the requested relief.
. . .
Findlaw recall litigation page Findlaw has set up a special web page devoted to the recall here. It promises to post additional documents in the near future. Looks like a very valuable resource.
. . .
"The Recall as Reform Politics" Bob Bauer offers this oped in the Washington Post.
. . .
"California recall adds fuel to electronic-voting debate" See this A.P. report from Thursday.
. . .
Stories on recall preclearance suits See here, here, here, and here. UPDATE: See also here.
. . .
Friday, August 15, 2003
"Judge Could Delay Calif. Recall Election" A.P. offers this report.
. . .
What do today's recall orders mean? The state suit is the least important for purposes of the recall (though it may be significant for purposes of the passage of Prop. 54). Under the state court order, the ballot summary (often the only thing a voter reads about a ballot measure before voting) will be changed for Prop. 54 to reflect that there is an exception for collecting data for medical purposes.
The two federal suits over section 5 preclearance, heard before the same judge, mean the following: As of now, Monterey County cannot send out overseas ballots, and it cannot send out absentee ballots, until the Department of Justice grants preclearance for changes to recall rules and the rules for consolidating initiatives with special elections. The DOJ must certify that the changes will have no discriminatory purpose or effect on protected minority groups. That preclearance request is being expedited, and it could come at any time. If it comes soon, this suit goes away. People who think the DOJ would have erred in granting preclearance will have to file a new suit under another provision of the Voting Rights Act. If the DOJ denies preclearance, California will have to sue in federal court.
If preclearance does not come soon, there could well be a delay in the election. The judge has scheduled further hearings. At some point, he will stop further steps in the recall process unless preclearance is granted.
Perhaps equally significant is the footnote that the judge dropped, noting that "Monterey County already has missed the statutory deadline for mailing absentee ballots to overseas voters and that this order will further shorten the time available for mailing ballots to the voters in question, but it concludes that it has no other alternative in view of the fact that the October 7, 2003 election cannot proceed in the absence of Section 5 preclearance. The Court expresses no opinion as to what remedies, if any, may be available to such voters under California law." Expect such a suit to be filed on the overseas voter issue, if one has not been filed already.
All of this is apart from the ACLU suit over punchcard balloting. The ACLU's request for a temporary restraining order will be heard in a Los Angeles federal district court on Monday. This suit, if successful, would delay the recall until March.
. . .
A third ruling---in state court, requiring a change in the language summarizing Prop 54 In Schacterele v. Shelley, a superior Court judge today issued an order granting a petition for writ on mandate "on the basis of clear and convincing proof that the challenged language in the ballot title and summary for Proposition 54 is misleading and inconsistent with the requirements of the Elections Code in that it fails fairly to state the chief points and purpose of the measure as required by Elections Code Section 9004 and Lungren v. Superior Court."
"On the face of the measure itself, it is obvious that the medical data exception is a very significant point. It exempts from the ban on racial classification a large area of activity, and in so doing addresses important public policy concerns related to public health and safety. The central importance of the exception to the public at large is underscored by the evidence of recent press coverage focusing on the precise issue....The medical data exception thus goes to the core of what the measure purports to do..."
"Moreover, in the Court's view the medical data exception is at least as important as the three exceptions the Attorney General chose to include in the tile and summary....The Attorney General's partial listing of exceptions had the effect of emphasizing those listed and, conversely, deemphasizing the omitted medical data exception. ...The choice appears to be wholly arbitrary. The result was a summary that inexplicably omitted one of the chief points of the measure, and thus distorted its purpose. "
The court then accepted the petitioner's suggestion to cure the deficiency.
. . .
Ruling in the other case Here is the order in the Oliverez case (footnotes omitted):
Plaintiffs seek a temporary restraining order and preliminary injunction prohibiting
Defendants from going forward with the statewide election on the recall of the Governor of
California scheduled for October 7, 2003 and from conducting any such election in the absence
of preclearance from the United States Department of Justice pursuant to Section 5 of the
Voting Rights Act of 1965, 42 U.S.C. §1973c (“Section 5”). The Court has read and considered
the legal briefing submitted on behalf of the parties as well as the oral arguments presented by
counsel at a hearing on August 15, 2003.
Defendants concede that the provisions of the California Constitution pursuant to which
the state Defendants permitted circulation of petitions for and thereafter scheduled the October 7,
2003 election on the recall of the Governor constituted changes in voting procedures within the meaning
of Section 5; that Monterey County is a covered jurisdiction pursuant to the Voting Rights Act, see
Lopez v. Monterey County, 519 U.S. 9, 12 (1996)1; that accordingly Monterey County must obtain
preclearance of such changes from the United States Department of Justice or the United States District
Court for the District of Columbia prior to enacting or seeking to administer them; and that in the
absence of such preclearance neither Monterey County nor the state may proceed with the October 7,
2003 election. Plaintiffs ask the Court to restrain any further preparations for the election immediately;
Defendants ask that the Court refrain from entering any order based upon their expectation that the
Department of Justice will act on their request for preclearance “well before” the election.
Plaintiffs argue that permitting Defendants to obtain Section 5 preclearance after the changes in
question already have been implemented undermines a primary purpose of the Voting Rights Act, which
is to ensure that covered jurisdictions do not implement changes in voting procedures until preclearance
has been obtained. They assert that permitting preparations for the October 7, 2003 election to go
forward improperly rewards Defendants for their alleged lack of diligence in seeking preclearance and
subjects the Department of Justice to undue pressure to grant preclearance and that even preparatory
actions being undertaken by Defendants in anticipation of the election violate the extremely broad
provisions of the Voting Rights Act. They acknowledge, however, that the Department of Justice has
authority to entertain Defendants’ current effort to obtain preclearance and that the basis for any
injunctive relief from this Court will dissipate if and when such preclearance is obtained.
Defendants contend that the public interest in allowing the electoral process to proceed is
compelling, that even a temporary interruption of their preparations for the October 7, 2003 election by
this Court would have the practical effect of delaying the election even if preclearance ultimately is
obtained, that they sought preclearance as soon as it was practicable to do so, and that allowing the
Department of Justice a reasonable time within which to consider their request while at the same time
allowing election preparations to go forward appropriately balances the interests at stake.
In a case such as this, the role of the district court is limited to a determination of 1) whether a
change in voting procedures triggers the preclearance requirement of Section 5, 2) whether
preclearance has been obtained, and 3) what temporary remedy, if any, is appropriate.
Lopez v. Monterey County, 519 U.S. at 23. The Court’s goal “must be to ensure that the covered
jurisdiction submits its election plan to the appropriate federal authorities for preclearance as
expeditiously as possible.” Id. at 24. It is clear in the present case both that the preclearance
requirement of Section 5 applies and that Defendants have not yet obtained preclearance. The only
question, therefore, is the appropriate extent of equitable relief.
This Court is extremely reluctant to intervene in or disrupt the electoral process unless it clearly
is compelled to do so. At the same time, permitting voting or other forms of direct political participation
to be affected by changes in voting procedures implemented in contravention of the Voting Rights Act
cannot be countenanced. Having considered the practical realities of the election process in light of
these principles, the Court finds for present purposes that the interests at risk if the election process is
permitted to proceed up to the point at which actual voting or other direct participation is implicated are
substantially outweighed by a compelling public interest in proceeding with the election as presently
scheduled, but that thereafter injunctive relief will be warranted in the absence of Section 5
preclearance. In the case of the recall election, voting is implicated first by Defendant Monterey
County’s stated intention to mail absentee ballots to registered voters residing overseas as soon as
possible, and thereafter by the commencement of general absentee voting on September 8, 2003.
Accordingly, and good cause therefor appearing, Defendants shall appear before this Court at
3:00 PM on Friday, August 29, 2003, in Courtroom 3 of the above-entitled Court, then and there to
show cause, if any they have, why they, their agents, servants, employees and those in active concert or
participation with them, should not be restrained and enjoined pending trial of this action from accepting
any ballots, including absentee ballots, or operating any polling place in connection with the special
statewide election currently scheduled for October 7, 2003 and from conducting any election
concerning the recall of the Governor in the absence of Department of Justice preclearance pursuant to
Section 5 of the Voting Rights Act of 1965. Counsel for Defendants shall advise the Court and
opposing counsel immediately of the substance of any and all communications from the United States
Department of Justice concerning the status of Defendants’ request for Section 5 preclearance.
Pending the hearing, Defendant Monterey County is restrained from mailing absentee ballots to
overseas voters registered to vote in Monterey County until Section 5 preclearance has been obtained
or until further order of the Court.3 An undertaking shall not be required.
This Order shall be served on Defendants on or before August 18, 2003, and proof of service
must be filed on or before August 20, 2003. Any response or opposition must be filed and served by
facsimile on Plaintiffs’ counsel on or before August 26, 2003; any reply to such response or opposition
must be filed and served by facsimile on Defendants’ counsel on or before August 28, 2003. Because
counsel have submitted substantial briefing and provided the Court with extended legal argument in
connection with Plaintiffs’ application for a temporary restraining order, briefing with respect to this
Order to Show Cause shall be limited to the response, if any, that Defendants have received from the
United States Department of Justice to their request for preclearance pursuant to Section 5 of the
Voting Rights Act of 1965 and the legal effect of such response or lack thereof on the issues presented
by the instant case.
IT IS SO ORDERED.
DATED: August 15, 2003 (electronic signature authorized)
_____________________________
JEREMY FOGEL
United States District Judge
Here is footnote 2:
laintiffs argue that Defendants should have sought Section 5 preclearance of California’s
current recall election procedures at or near the time the procedures were enacted as part of
Proposition 9 in 1974. Plaintiffs acknowledge, however, that the subject election is the first statewide
recall election since the enactment of Proposition 9 and that the need for Section 5 preclearance of the
procedures properly could have been raised (but was not) when the petitions seeking the recall first
were circulated. Although Plaintiffs contend correctly that the burden is on the state to comply with the
Voting Rights Act rather than on Plaintiffs to identify instances of non-compliance, the Court properly
may consider the advanced stage of the election process at issue here in fashioning an appropriate equitable remedy. See Clark v. Roemer, 500 U.S. 646, 654-55 (1991).
. . .
Order in the MALDEF preclearance case The order enjoins Monterey county from sending out any ballots until the next hearing ---apparently where the state will have to show that it has gained preclearance. I don't know yet if there is an order in the other case. Here is the text (footnotes omitted):
ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; TEMPORARY ORDER RESTRAINING
MAILING OF OVERSEAS BALLOTS
Case No. C-03-03584 JF
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
AURELIO SALAZAR, et al.,
Plaintiffs,
v.
MONTEREY COUNTY, CALIFORNIA, et al.,
Defendants.
Case No. C-03-03584 JF
ORDER TO SHOW CAUSE RE
PRELIMINARY INJUNCTION;
TEMPORARY ORDER RESTRAINING
MAILING OF OVERSEAS BALLOTS
Plaintiffs seek a temporary restraining order and preliminary injunction prohibiting
Defendants from going forward with the special election on Proposition 54 (also known as the
Classification by Race, Ethnicity, Color or National Origin (CRECNO) Initiative) currently
scheduled for October 7, 2003 and from conducting any election to decide Proposition 54 other
than on March 2, 2004. The Court has read and considered the legal briefing submitted on behalf
of the parties as well as the oral arguments presented by counsel at a hearing on August 15, 2003.
Defendants concede that the state’s decision to place Proposition 54 on the same
statewide ballot as the vote on the recall of the Governor is a change in voting procedures within
the meaning of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (“Section 5”); that
Monterey County is a covered jurisdiction pursuant to the Voting Rights Act, see Lopez v. Monterey
County, 519 U.S. 9, 12 (1996)1; that accordingly Monterey County must obtain preclearance of such
changes from the United States Department of Justice or the United States District Court for the
District of Columbia prior to enacting or seeking to administer them; and that in the absence of such
preclearance neither Monterey County nor the state may proceed with the October 7, 2003 election.
Plaintiffs ask the Court to restrain any further preparations for the election immediately; Defendants ask
that the Court refrain from entering any order based upon their expectation that the Department of
Justice will act on their request for preclearance “well before” the election.
Plaintiffs argue that permitting Defendants to obtain Section 5 preclearance after the changes in
question already have been implemented undermines a primary purpose of the Voting Rights Act, which
is to ensure that covered jurisdictions do not implement changes in voting procedures until preclearance
has been obtained. They assert that permitting preparations for the October 7, 2003 election to go
forward improperly rewards Defendants for their alleged lack of diligence in seeking preclearance and
subjects the Department of Justice to undue pressure to grant preclearance and that even preparatory
actions being undertaken by Defendants in anticipation of the election violate the extremely broad
provisions of the Voting Rights Act. They acknowledge, however, that the Department of Justice has
authority to entertain Defendants’ current effort to obtain preclearance and that the basis for any
injunctive relief from this Court will dissipate if and when such preclearance is obtained.
Defendants contend that the public interest in allowing the electoral process to proceed is
compelling, that even a temporary interruption of their preparations for the October 7, 2003 election by
this Court would have the practical effect of delaying the election even if preclearance ultimately is
obtained, that they in fact sought preclearance as soon as it was practicable to do so following the
certification of the special election on the recall of the Governor, and that allowing the Department of
Justice a reasonable time within which to consider their request while at the same time allowing election
preparations to go forward appropriately balances the interests at stake.
In a case such as this, the role of the district court is limited to a determination of 1) whether a
change in voting procedures triggers the preclearance requirement of Section 5, 2) whether
preclearance has been obtained, and 3) what temporary remedy, if any, is appropriate.
Lopez v. Monterey County, 519 U.S. at 23. The Court’s goal “must be to ensure that the covered
jurisdiction submits its election plan to the appropriate federal authorities for preclearance as
expeditiously as possible.” Id. at 24. It is clear in the present case both that the preclearance
requirement of Section 5 applies and that Defendants have not yet obtained preclearance. The only
question, therefore, is the appropriate extent of equitable relief.
This Court is extremely reluctant to intervene in or disrupt the electoral process unless it clearly
is compelled to do so. At the same time, permitting voting or other forms of direct political participation
to be affected by changes in voting procedures implemented in contravention of the Voting Rights Act
cannot be countenanced. Having considered the practical realities of the election process in light of
these principles, the Court finds for present purposes that the interests at risk if the election process is
permitted to proceed up to the point at which actual voting or other direct participation is implicated are
substantially outweighed by a compelling public interest in proceeding with the election as presently
scheduled, but that thereafter injunctive relief will be warranted in the absence of Section 5
preclearance. In the case of Proposition 54, voting is implicated first by Defendant Monterey County’s
stated intention to mail absentee ballots to registered voters residing overseas as soon as possible and
thereafter by the commencement of general absentee voting on September 8, 2003. Direct
participation is implicated by the August 31, 2003 deadline established by the state for public review of
the ballot pamphlet that will contain the arguments for and against Proposition 54.
Accordingly, and good cause therefor appearing, Defendants shall appear before this Court at
3:00 PM on Friday, August 29, 2003, there and then to show cause, if any they have, why they, their
agents, servants, employees and those in active concert or participation with them, should not be
restrained and enjoined pending trial of this action from accepting any ballots, including absentee
ballots, or operating any polling place in connection with the special election on Proposition 54 currently
scheduled for October 7, 2003. Counsel for Defendants shall advise the Court and opposing counsel
immediately of the substance of any and all communications from the United States Department of
Justice concerning the status of Defendants’ request for Section 5 preclearance.
Pending the hearing, Defendant Monterey County is restrained from mailing absentee ballots to
overseas voters registered to vote in Monterey County until Section 5 preclearance has been obtained
or until further order of the Court.2 An undertaking shall not be required.
This Order shall be served on Defendants on or before August 18, 2003, and proof of service
must be filed on or before August 20, 2003. Any response or opposition must be filed and served by
facsimile on Plaintiffs’ counsel on or before August 26, 2003; any reply to such response or opposition
must be filed and served by facsimile on Defendants’ counsel on or before August 28, 2003. Because
counsel have submitted substantial briefing and provided the Court with extended legal argument in
connection with Plaintiffs’ application for a temporary restraining order, briefing with respect to this
Order to Show Cause shall be limited to the response, if any, that Defendants have received from the
United States Department of Justice to their request for preclearance pursuant to Section 5 of the
Voting Rights Act of 1965 and the legal effect of such response or lack thereof on the issues presented
by the instant case.
IT IS SO ORDERED.
DATED: August 15, 2003 (electronic signature authorized)
____________________________
JEREMY FOGEL
United States District Judge
Here is a very interesting footnote 2:
2The purpose of this limited restraining order is to ensure that no person who casts a vote with
respect to the October 7, 2003 election does so pursuant to voting procedures that have not been
precleared pursuant to Section 5 of the Voting Rights Act. The Court notes that Monterey County
already has missed the statutory deadline for mailing absentee ballots to overseas voters and that this
order will further shorten the time available for mailing ballots to the voters in question, but it concludes
that it has no other alternative in view of the fact that the October 7, 2003 election cannot proceed in
the absence of Section 5 preclearance. The Court expresses no opinion as to what remedies, if any,
may be available to such voters under California law.
. . .
ACLU TRO hearing 1:30 Monday on punchcard use in recall If you have a copy of the state's response due today, please forward it to me.
. . .
Report on hearing on Section 5 preclearance issues See this report on the Ninth Circuit Blog (a wonderful blog I had never seen before). From the report, it appears that the state and county have conceded that preclearance is required and that the election will be delayed unless preclearance comes from Washington D.C. From other sources, it sounds like preclearance could come quite quickly, thereby mooting these suits. UPDATE: If the Department of Justice grants preclearance, then I believe the next step for anyone who wanted to challenge the decision would be a new suit brought before a special three-judge court challenging the decision to grant preclearance on grounds that the recall rules have a discriminatory purpose or effect. But I may be wrong on the procedure. If others with more knowledge of the procedure e-mail me, I'll put out a further update. UPDATE 2: See Steven Mulroy's more knowledgeable comments here (suggesting that appropriate next step to challenge a decision to grant preclearance is a new section 2 suit filed in California).
. . .
"Recall Windfall" The Recorder offers a very interesting article on law firms profiting from recall litigation. Unfortunately, the article is not available to non-subscribers.
. . .
California Secretary of State Kevin Shelley on the recall: "If we don't get sued one or two times a day over this, we stop feeling loved" See this Bloomberg report.
. . .
"Abortion provider paid for late anti-Kline ads" See this story on campaign finance disclosure out of Kansas. Thanks to Bob Stern for the pointer.
. . .
FEC as soap opera---all as the result of a doctoral thesis Don't miss this article, which originally appeared in Roll Call.
. . .
"Prop. 54 to Stay on the Ballot" This Sacramento Bee article concerns a state lawsuit brought by MALDEF over the inclusion of the racial privacy initiative on the recall ballot. The article also includes a significant fact related to the federal cases brought claiming that the recall (and the initiative) cannot go forward without section 5 preclearance under the Voting Rights Act. The article reports:
In papers opposing the restraining orders that were filed late Thursday, California Attorney General Bill Lockyer said the Justice Department's approval was expected "well before" the election.
John Mott-Smith, the chief of California's Elections Division, sent a request, dated Aug. 4, for clearance to hold an election on a day other than those specified in the state Elections Code. He asserted that procedures for the election would follow long-standing state law.
My understanding is that the Justice Department has procedures to expedite the section 5 preclearance process.
. . .
"Incumbent Protection Racket" The Wall Street Journal offers this editorial on redistricting. Thanks to Steven Sholk for the pointer.
. . .
Thursday, August 14, 2003
Will Davis sue over being excluded from candidate debates? Here is the California Association of Broadcaster's proposal (link via Dan Weintraub). Third party candidates have been suing unsuccessfully to get into debates, even ones sponsored by public broadcasters. Would Davis have a better chance if he tried to get into the debate? Not that he necessarily would want to....
. . .
Socialist Workers' Party Victory Before the FEC The Militant offers this report. Thanks to a reader for passing it along.
. . .
Will it be confusing to have 135 candidates on the ballot? Tony Quinn sends along his thoughts via e-mail:
In 1969, in a special election, Los Angeles County had an election with 133 candidates. It was for the newly created Community College District. The voters were told to choose seven of the 133 candidates. It went off without a hitch. The leading vote getter of the seven winners was one Edmund G. Brown Jr. and this was the start of his political career. The other winners included three future members of the Assembly. No wackos or porn stars were elected.
So much for the argument that voters cannot figure out a long ballot.
Thanks for writing!
. . .
"FEC: OK to give lawmaker legal funds" A.P. offers this report.
. . .
"Judge Could Still Delay the Recall Process" See this article, which originally appeared in the Los Angeles Times.
. . .
"Voter Initiatives Limit California's Wiggle Room' Governor Has Little Budget Discretion" The Washington Post offers this report.
. . .
McCarty fined $2,000 for Florida election law violations coming out of 2000 election See this report.
. . .
New York Times report on Jacobus case is available here.
. . .
"O.C. to Put Scantrons to the Test; * New voting machines won't be ready by Oct. 7, so ballots will be cast on school exam forms." The Los Angeles Times offers this report, on how Orange County will cast ballots for the 135 candidates on the gubernatorial recall ballot.
. . .
Wednesday, August 13, 2003
Supreme Court grants application of political parties to file a 40 page reply brief in BCRA case After denying the McCain lawyers' request to file more than the 75 pages allotted to McCain, the Supreme Court has granted the request of the political parties to file a 40 page, rather than 20 page, consolidated reply brief. Also, the NRA and Ron Paul have asked for reconsideration on the denial of their respective requests for argument time during the BCRA oral argument on September 8.
. . .
"Meehan backs return of 'soft money' for Dems" See this report.
. . .
"Davis Cranks Out Judicial Appointments" See this A.P. report.
. . .
Strategic voting and strategic campaign spending in the California recall In the last gubernatorial race, Governor Davis's campaign committee made what many considered to be a very smart political move (though one that has generated a fair share of controversy): Davis ran ads attacking Richard Riordan's views on abortion when Riordan was running against Bill Simon for the Republican nomination for governor. Many have viewed the ads as quite effective in knocking Riordan out of the race, leaving Davis to face a weaker Republican opponent in the general election.
Strategic campaign spending is also being considered in the recall election, though the plurality rule leaves open the possibility of different strategies. Dan Weintraub reports here that California's Indian tribes, expected to support Cruz Bustamante through independent expenditures may well spend money supporting conservative Republican Tom McClintock. The hope for Bustamante is to split the Republican vote between a few Republicans.
We might see similar spending by those opposing Bustamante supporting Green party candidate Peter Camejo (who polled nearly 6% in the last gubernatorial race) and independent (and for the moment left-leaning) Arianna Huffington.
Will this spending work? Much will depend upon what polling shows in the weeks before the election. Just before the 2000 presidential election, many Nader voters switched their votes to Gore (though not enough to help Gore in Florida) recognizing that Nader could play a "spoiler" role. Voters voted "strategically" for their second choice who was more likely to win. We might see the same thing here. For example, if polls near the election show Arnold and Cruz both at around 25% of the vote, with Camejo, Huffington, and McClintock each polling 5-10%, there will be lots of arguments to those supporters to switch their votes.
. . .
Opeds on recall election administration issues Fred Woocher has written "It's Enough to Cause Butterflies." Thad Hall has written "This is No Way to Run a Railroad, or Even a California Recall." Both opeds appear in today's Los Angeles Times.
. . .
"Davis Resignation Scenario Murky, Experts Say" CNSNEWS.com offers this report.
. . .
"Rights Groups Try to Delay Recall over Punch-card Ballots" The San Francisco Chronicle offers this report.
. . .
"Soft Money Limit Upheld on Appeal" A.P. offers this report on yesterday's Ninth Circuit decision in Jabobus v. State of Alaska.
. . .
"Report Details GOP Bids For U.S. Aid in Tex. Fray; Justice Department Cites 1 Case of Federal Action" The Washington Post offers this report, which begins: "Texas Republicans tried to enlist the help of several federal law enforcement agencies in May during their unsuccessful attempt to force missing Democratic state legislators to return to Austin to vote on congressional redistricting legislation, the Justice Department said yesterday. "
. . .
"McCarty to hear about decision today on fine that could reach $450,000" More on the post-Florida 2000 investigation here. Thanks to a reader for the pointer.
. . .
Tuesday, August 12, 2003
Publication status of the California Supreme Court's orders A knowledgeable source tells me the following about the orders, concurrence, and dissent issued last week:
The speaking orders will be reported in the Supreme Court's minutes. The minutes can be cited by date and page when they are available (minutes are paginated consecutively through each year). The minutes are printed in the Official Reports advance pamphlets, but not in the bound volumes.
The orders may also be cited independent of the minutes by parenthetically noting the complete filing date and docket number. If there is a commercial database citation available (e.g., Westlaw or Lexis), that may also be included in brackets. These orders did not really meet the definition of "opinion" for inclusion as such in the Official Reports.
Of course, the fact that they are printed doesn't give them precedential value.
. . .
More on Jacobus, and the BCRA case No doubt, supporters of McCain-Feingold will point to Jacobus to support the constitutionality of a soft money ban. There is also, however, good language in the opinion for supporters of the law on the issue advocacy question:
Amicus Republican National Committee (“RNC”) argues strenuously that the constitutionality of political party donation limits depends upon how the donated funds are used. The basis of this claim is the theory that Buckley established “an express advocacy test” that only allows contributions to be limited where they will be used for speech advocating the election or defeat of a candidate. See Buckley, 424 U.S. at 4 & n.52. In accepting this argument, the district court cited the Washington Supreme Court’s decision in Washington State Republican Party v. Washington State Public Disclosure Commission, which is one of the few cases published to date to address the constitutionality of limitations on soft money contributions. 27 4 P.3d 808, 819-24 (2000) (en banc). In Washington State, the court concluded that contributions to political parties for purposes of issue advocacy could not be regulated, declaring that Buckley established that “issue advocacy is beyond the reach of government regulation.”28 4 P.3d at 819; see also Faucher v. FEC, 928 F.2d 468, 472 (1st Cir. 1991) (noting in the course of considering regulation of expenditures that Buckley “limit[ed] the scope of the FECA to express advocacy”); Maine Right To Life Comm. v. FEC, 914 F. Supp. 8, 10-12 (D. Maine) (same), aff’d by 98 F.3d 1 (1st Cir.
1996); West Virginians For Life, Inc. v. Smith, 960 F. Supp. 1036, 1039 (S.D. W.Va. 1996) (stating in the context of reporting requirements that “[i]t is clear from the holdings in Buckley and its progeny that the Supreme Court has made a definite distinction between express advocacy, which generally can be regulated, and issue advocacy, which generally cannot be regulated.”).
This seriously flawed interpretation reflects a basic misreading of Buckley. Buckley distinguished between express
advocacy and issue advocacy in order to avoid unconstitutional vagueness that might chill protected speech, not to establish a constitutional limit on the legislative ability to regulate issue advocacy. Compare Buckley, 424 U.S. at 44 (“We agree that in order to preserve the provision against invalidation on vagueness grounds, [it] must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.”) with Washington State, 4 P.3d at 816 (“[Buckley’s] narrowing construction was necessary because if the limitations applied to issue advocacy, then FECA would unconstitutionally restrict such speech.”).29 The fact that Buckley went on to conclude that the provision was unconstitutional, even after excluding issue advocacy from its reach, provides further proof that the narrowing construction did not constitute a determination that restrictions on issue advocacy were per se unconstitutional. See 424 U.S. at 44 (“We then turn to the basic First Amendment question whether [the provision], even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression.”). Thus, Buckley did not establish that regulation of issue advocacy was unconstitutional.
Additionally, the express advocacy test erected by the Court in Buckley related only to expenditures and reporting
requirements, not to contributions....
. . .
Ninth Circuit upholds Alaska soft money ban See this opinion in Jacobus v. State of Alaska. From the opinion introduction:
We hold that these issues are still justiciable, despite recent changes in Alaska law, and we reverse the rulings of the districtcourt holding Alaska’s limitations on soft money unconstitutional. As the Supreme Court’s recent opinion in FEC v.
Colorado Republican Federal Campaign Committee (Colorado Republican II), 533 U.S. 431 (2001), suggests, soft money presents a danger of corruption and the appearance of corruption because political parties trade influence and access to candidates for soft money dollars, and candidates trade influence and access for the indirect benefits that they receive from soft money contributions to their party. In addition, candidates' heavy involvement in soft money fundraising and the creation of “tallying”2 and other methods for tracking soft money contributions secured by particular candidates indicate that soft money is indeed used to circumvent hard money contribution limits. Because the limitations on soft money contributions imposed here reflect Alaska’s concern about these same dangers, we uphold the limits on soft money contributions.
The court affirmed the lower court's decision to strike down Alaska's limit on professional volunteer services that may be donated to a party.
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"247 Have Filed in Calif. Governor's Race" A.P. offers this report.
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"Texas Supreme Court Rules Against Republicans" A.P.'s story and the Texas Supreme Court order (both links via How Appealing).
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"For TV Network, Recall Campaign is a Game" See this story in the San Jose Mercury News.
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The recall and campaign finance See "FPPC Sets Fundraising Limits" and "For Bustamante, Tribal Gaming May Be His Ace in the Hole"---both articles from the Sacramento Bee.
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Monday, August 11, 2003
"California Faces New Recall Burden: Multiple Ballots May Confuse Voters" The Washington Post offers this report. UPDATE: See also this Oakland Tribune report and this San Jose Mercury News report.
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ACLU to seek temporary restraining order in recall punchard federal district court tomorrow The ACLU's suit, described in more detail here, will ask a federal district court in Los Angeles tomorrow to issue a TRO delaying the recall election until it can be conducted without punchards.
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"California Determines Recall Ballot Order" A.P. offers this report.
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"Superior Court Judge Rejects Bid to Block Vote on Recalling Davis" The Metropolitan News Enterprise offers this report.
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"Will Democrats try to 'buy' your vote in CA?" Marketplace offers this audio report.
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On Newshour, Life and Times, maybe I taped an interview with PBS. I am supposed to be on the News Hour with Jim Lehrer tonight and on KCET's Life and Times tomorrow. Of course, more often than not these taped television segments have not appeared when promised. We'll see.
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More recall humor See this article by Allison Hayward on NRO Online.
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Texas redistricting dispute headed to Texas Supreme Court See the Christian Science Monitor story here, and here on President Bush and the dispute (links via How Appealing).
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"Officials Warn of Turmoil on Recall Election Night" The Los Angeles Times offers this report. In related news, A.P. offers "Ballot Order May Sway Recall Election."
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Sunday, August 10, 2003
"Coming Soon: 'The Rise of the Arnold Democrats'" Tony Quinn offers this opinion piece in today's Los Angeles Times.
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"$50,000 earns donors a private Bush Barbecue" See this article, which originally appeared in the Washington Post.
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"Campaign Finance Plan Ahead" The Washington Post offers this article, which begins: "The nation's campaign finance law overhaulers are at work again. Now they are working on legislation to revamp the public financing system for presidential elections, calling for more funding and higher spending limits for primary campaigns. They hope to have a new system in place for the 2008 elections."
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In legally-related recall news The Sacramento Bee offers "Candidate Finances Get First Look." The Los Angeles Times offers "158 File Papers for Recall Election" (see also this Times pdf file with candidate bios and this page devoted to the recall (including this sub-page devoted to legal issues surrounding the recall)). Robert Salladay has this interesting column in the Chronicle on recall tactics and the effects of the plurality rule (on a similar note, see "Appealing to a select group just might work" in the Contra Costa Times).
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Saturday, August 09, 2003
90+ candidates? From the Los Angeles Times:
"A preliminary late-day tally shows more than 90 candidates, mostly political unknowns espousing a dizzying array of views and platforms, submitted the necessary paperwork by the 5 p.m. deadline to officially join the race to recall and replace Gov. Gray Davis."
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More on potential punch card/ voter consolidation problems The New York Times offers "A Wild Card, and It Isn't Schwarzenegger."
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The possibility of post-election challenges to the recall One of the claims I have been making (including here) is that it is better to have problems with election mechanics brought now, rather than after the election, because post-election challenges undermine the legitimacy of the courts and the democratic process: would we really want to put the courts in a position of being asked to undo the outcome of the election?
Post-election challenges were obviously a big problem in Florida as well, and it is good to keep in mind a bit of the law of remedies. When one seeks relief from a court such as overturning an election, those opposing the election may a laches argument. Laches is an equitable defense providing that one cannot bring a claim when there has been unreasonable delay that prejudices someone else. Applied to elections, the idea is that if you could have challenged some problem with the election before the election, you should have done so and a post-election challenge comes too late. For example, some claim that because the infamous Palm Beach County "butterfly ballot" was printed and on display publicly before the 2000 election, the post election claims to the ballot form came too late. (Perhaps not; it had been argued that the printed display did not show the nature of the problem on the actual machines.)
So it is good that many challenges have been brought before the election, such as the "if appropriate" challenge. What would remain after the election? Dan Weintraub points here to a possible post-election challenge to the 65 signature/$3,500 nomination rules. I don't think that such a claim would succeed on the merits after the election, because the majority of four Justices (plus the one concurrence) held on the merits now that the 65 signature requirement is correct (or at least was in the Secretary's discretion). (See the Court's opinions I have posted here; here; and here.)
But the Davis punch card claim was not on the merits (the court denied the writ without opinion) and the Secretary of State has taken the position that if problems develop after the fact, some judicial intervention may be necessary. So, depending upon what happens with the ACLU suit, I think post-election challenges are possible---especially if we see long lines to vote in urban areas where there are allegations that people did not get to vote before the polls closed, or that there were significant errors in these areas because of the use of punch cards, etc. Because plaintiffs have tried to bring those challenges before the election, and assuming there is no ruling on the merits before the election, the claims likely would not be barred by laches.
I am interested in others' ideas about what other claims would not be barred by laches. Of course, given the doctrine of laches, the claims most likely to be successful after the election are the ones we cannot anticipate before the election.
UPDATE: Appellate guru David Ettinger of Horvitz and Levy, California's leading appellate firm (disclosure: I was an associate there before beginning to teach), writes the following about my point that the nominations case (Burton) was a holding on the merits. David writes:
I agree with you that the post-election claim would probably fail. A majority of the court has indicated it is not buying the merits of the argument and I see no reason to believe any of the majority justices would change his or her mind.
However, it's not accurate to portray the court's decision as a "h[o]ld[ing] on the merits." Because there was no alternative writ or order to show cause and no oral argument, the court's decision should be considered the summary denial of a writ petition that has no precedential or law of the case effect. (See Kowis v. Howard (1992) 3 Cal.4th 888.) My guess is that the justices' "speaking" opinions will never be published in the official reports as citable precedent.
For the court to later change its mind on this issue and un-do the election would be very harmful and is very unlikely. however, I believe the court has the authority to do just that without having to formally "overrule" or "reverse" any prior ruling.
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Judge denies preliminary injunction in the circulator case As I predicted, the trial judge rejected for lack of evidence the lawsuit seeking to derail the recall election by pointing to a handful of petition circulators who were not registered voters. See stories here and here.
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Friday, August 08, 2003
Bustamante and resignation There may be a bit more ambiguity to Elections Code section 11302 than I thought. Dan Lowenstein suggests here that Bustamante would not remain governor if the majority voted against the recall and Davis had resigned. "The governor after the election would be the person who received a plurality of votes in the replacement election." He continues: "I agree ... on the important point, that the recall election would proceed even if Davis resigned. I also agree that Bustamante would become governor, to fill the vacancy."
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Allegations from the ACLU complaint The complaint, with the name Southwest Voter Registration Education Project, includes these allegations in the introduction:
4. If the gubernatorial recall election and vote on Proposition 53 and Proposition 54 proceed on October 7, 2003, as presently scheduled, voters in at least six California counties will disproportionately be denied their right to have their votes counted, as the result of the use of antiquated and unreliable pre-scored punch card (“PPC”) voting machines in those counties. Counties in the State of California use a variety of voting mechanisms with widely disparate levels of effectiveness in accurately recording voters' intentions. The result of this hodgepodge of voting systems is that a disproportionate number of votes in some counties are not counted at all, and that a grossly disproportionate number of African-American, Latino, and Asian-American voters in the State do not have their votes counted at all. Moreover, according to many publicly reported polls of registered voters in California, both of these elections are projected as close races, the outcome of which could be decided by narrow margins.
5. In 2000 and 2002, the most recent statewide elections, millions of California registered voters used pre-scored punch card voting machines that result in disproportionately high rates of spoiled, uncounted, and unmarked ballots compared to other systems used in the state. In the November 2000 election, 53.4% of voters statewide used pre-scored punch card machines. Yet ballots cast using pre-scored punch card machines accounted for 74.8% of all ballots that did not register a vote for the President of the United States. On information and belief, over 8.4 million people in counties using pre-scored punch card machines were registered to vote at the time of the November 2000 general election, over 5.9 million people actually voted, and there were over 132,000 uncounted votes on these machines. Pre-scored punch card machines resulted in an average combined overvote (the machine reading more than one vote and thus disqualifying that vote) and undervote (the failure of the machine reading the punch card to read any vote) rate of 2.23%. The combined overvote and undervote, herein referred to as the “error rate,” for these machines is more than double the error rate of any other type of machine or system used in California. The error rate in Los Angeles County, which presently uses VotoMatic pre-scored punch card machines (identical to the voting machines used in several counties in Florida during the November 2000 election), and where 4,075,037 registered voters reside, was more than 4½ times the error rate in Riverside County (2.7% error rate, compared to .59%).
6. The use of pre-scored punch card machines has a disproportionate adverse impact upon people of color, including African-American, Asian-American, and Latino voters. That is because people of color in California are more likely to live in counties that continue to use PPC systems and because, within those counties, PPC systems lead to high rates of undervotes and overvotes for people of color and those with lower levels of education.
7. A gubernatorial recall election has been set for October 7, 2003. At that election, California citizens will vote on whether to recall Governor Gray Davis and, if so, on whom will replace him. If the scheduled election proceeds on October 7, 2003, at least six counties -- including Los Angeles County, the state and country’s most populous electoral jurisdiction -- will use PPC voting machines. This will result in the disproportionate disenfranchisement of those counties’ voters, and will have an especially severe impact on people of color.
8. In addition to the gubernatorial recall, the October 7, 2003 ballot is presently scheduled to include Proposition 53, which would ask voters if they want to expand significantly the funding for State and local physical infrastructure projects, earmarking up to $850 million in 2006-7 for highways, parks and water projects, and potentially several billions of dollars in future years, and Proposition 54, the so-called “Racial Privacy Initiative,” which would prohibit all state and local entities from inquiring into or collecting data regarding race or ethnicity. The inclusion of this racially charged measure on the October 7, 2003 ballot would work a special unfairness upon people of color, in light of the fact that PPC machines will continue to be used in that election, thereby diminishing the votes of African Americans, Latinos and Asian Americans.
9. To prevent the threatened violations of voters’ rights under both the Fourteenth Amendment and Section 2 of the Voting Rights Act, Plaintiffs seek preliminary and permanent injunctive relief, requiring the Secretary of State to postpone the scheduled recall election until a date on or after March 1, 2004, the date as of which PPC machines will be decertified and may therefore no longer be used in California elections.
The case has been assigned to Judge Timlin, but the ACLU has moved to have the case heard by Judge Wilson, who heard the earlier punchcard case, Common Cause v. Jones.
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Why Davis should not appeal his suit to the United States Supreme Court Because Davis's suit raises federal constitutional issues (including concern over punch card ballots), he could potentially appeal to the United States Supreme Court. I think he would be wise not to do so. The chances of the United States Supreme Court intervening on Bush v. Gore equal protection grounds after the California Supreme Court has declined to do so are slim to none.
It would be much better to take a chance on the ACLU suit raising the same issues in federal court. There, a federal district judge or the Ninth Circuit may grant the relief that Davis wants---a delay in the election. But the lower court judges may be more reluctant to act if the Supreme Court has already declined to hear Davis's case raising the same issues.
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Equal Time rules and the recall A few people have contacted me asking if Arnold's appearance on Jay Leno violates the equal time rules unless Jay Leno gives the other candidates a chance to appear on his show. This is an area I know very little about. This Los Angeles Times article suggests the answer is no, but I am curious if there are other opinions out there on this topic.
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A Perot Candidacy in 2004? Micah Sifry has the scoop.
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"Chads Hang Over Recall" My Los Angeles Times oped is here. One point I did not have a chance to make in print is that problems with voting mechanics are only exacerbated by the plurality rule in part 2 of the recall. The rule makes it much more likely that we will have a close election and that selective failures of voting can affect the outcome of the election.
Vic Amar offers his thoughts on recall litigation issues at Findlaw, including an intriguing suggestion to use the single transferable vote in future recall elections.
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Recall litigation news See reports in: the Los Angeles Times (and here); the Sacramento Bee; the San Diego Union Tribune; the San Francisco Chronicle; and the San Jose Mercury News.
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Thursday, August 07, 2003
Could Peter Ueberroth run as an independent in the recall? A radio report I heard this evening stated that the former baseball commissioner, a registered Republican, intends to run as an independent if he runs in the recall election. I have no idea if this is true. But assume it is. Can he run as an independent under state law? The Secretary of State has taken the position that these rules apply to the recall. See here (page one):
2. Independent candidates.
Not have been registered as affiliated with any qualified political party within three months immediately prior to the time the declaration of candidacy is presented to the county elections official.
The Secretary cites to Elections Code section 8550(f), which provides:
At least 88 days prior to the election, each candidate shall leave with the officer with whom his or her nomination papers are required to be left, a declaration of candidacy which states all of the following:...
(f) That the candidate is not, and was not at any time during the 13 months preceding the general election at which a candidate for the office mentioned in the declaration of candidacy shall be elected, or in the case of an election governed by Chapter 1 (commencing with Section 10700) of Part 6 of Division 10, at any time during the three months immediately preceding the filing of the declaration, registered as affiliated with a political party qualified under Section 5100. The statement required by this subdivision shall be omitted for a candidate for the presidential elector.
Note that 8550(f) provides for a 13 month period, not a three month period. In either case, if Ueberroth (or anyone else) desires to run as an independent candidate immediately after having been registered with a political party, will the Secretary's rule hold up? Remember that Chapter 8 of the elections code does not apply to recall elections. (See 8001.) Yet the California Supreme Court just upheld the application of the nomination rules in 8062 in denying the Burton petition.
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Some initial thoughts on the California Supreme Court's orders The Court did as I have been predicting in the Frankel suit, rejecting out of hand the "if appropriate" argument that would have made the Lt. Governor the governor upon Davis's recall. I was also not surprised to see the court split on the Burton petition challenging the 65 signature/$3,500 requirement for candidate successors. These nomination rules apply to direct party primaries, and specifically state that they do not apply to recall elections. Yet there was no other provision to apply. The Chief Justice would have applied an old 1% rule, that was no longer on the books and that would have necessitated a delay in the election (or no candidates able to file in time). This was a difficult call.
I was most surprised that no Justices agreed with Gov. Davis's punch card/consolidation of precincts claim. That equal protection claim may well survive in federal court (or, less likely, through a Davis petition to the United States Supreme Court). More on the equal protection aspects remaining tomorrow. The other cases to watch are the federal statutory claims under Section 5 of the Voting Rights Act. Litigation continues, but now mostly in federal court.
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Court order in Frankel suit
Petitioners seek an original writ of mandate to compel the Secretary of State to omit from the recall ballot measure that is to be submitted to the voters at the October 7, 2003, election, any list of candidates to be voted upon to select a successor to the Governor should a majority of voters vote in favor of recall. Petitioners contend that should a majority vote in favor of recall, the Lieutenant Governor will automatically succeed to the office of Governor, and thus the inclusion of a list of candidates is unauthorized and unnecessary.
We have concluded that petitioners have not demonstrated a sufficient likelihood of success to warrant the issuance of an alternative writ or order to show cause. To support their legal claim, petitioners rely on two provisions of the California Constitution: (1) article V, section 10 [“The Lieutenant Governor shall become Governor when a vacancy occurs in the office of Governor”], and (2) article II, section 15, subdivision (a) [“An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signature” (italics added)]. The history of the recall procedure embodied in the California Constitution, however, makes it clear that, as a general matter, when an officer is removed from office by recall and is immediately replaced by the candidate who receives a plurality of votes at the election, no “vacancy” in the office occurs (see Cal. Const., former art. XXIII, § 1, 6; Elec. Code, §§ 11384, 11385, 11386), and thus article V, section 10, does not apply. Further, the circumstances relating to the origin of the “if appropriate” language in article II, section 15, subdivision (a), make it clear that this language was added simply to recognize that the election of a successor at a recall election is not appropriate when the subject of the recall election is a justice of the Court of Appeal or Supreme Court. The “if appropriate” clause was added at the same time, and to the same paragraph, as language explicitly providing that there shall not be any candidacy for a potential successor in the case of a recall election for an appellate justice, and was inserted to make the first sentence of the paragraph consistent with this addition. (See Assem. Const. Amend. No. 29 (1973-1974 Reg. Sess.) as amended by Assem., Aug. 6, 1973; thereafter adopted by voters as Cal. Const., former art. XXIII, § 3, at Gen. Elec., Nov. 5, 1974 (now Cal. Const., art. II, § 15).) If an appellate justice is recalled, a successor is appointed by the Governor pursuant to the provisions of article VI, section 16, subdivision (d) of the California Constitution. Nothing in article II, section 15, subdivisions (a) or (c), or in the history of the California constitutional recall procedure as a whole, indicates that it is not appropriate to include a list of potential successor candidates when a recall election involves the office of Governor.
Accordingly, the petition is denied.
___________________________
Chief Justice
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George dissent in Burton case
For the reasons that follow, I would order respondent Secretary of State not to take further steps in preparation for the statewide recall election now set for October 7, 2003, pending determination of this petition. I would order respondent Secretary of State to show cause why he should not be directed to require candidates who wish to have their names printed on the ballot, to succeed the Governor in the event he is recalled, to submit a nomination petition signed by registered voters equal in number either to at least 1 percent of the total number of votes cast for that office at the preceding election (in this instance, 74,767 signatures), or 1 percent of all registered voters as of the date of the last election (here, 153,035).
The chaos, confusion, and circus-like atmosphere that have characterized the current recall process undoubtedly have been brought about in large measure by the extremely low threshold set by respondent for potential candidates to qualify for inclusion on the ballot to succeed to the office of Governor: the signatures of only 65 registered voters on a nomination petition and payment of a $3500 filing fee. As explained below, there are very serious questions whether respondent Secretary of State has erred in determining that so few signatures of registered voters are required in order for a candidate to be placed on the recall election ballot. The substantial questions that are raised by this petition involve fundamental rights of all voters in the recall election, and of the potential candidates on the recall ballot, that could well affect the outcome of the recall election. These questions should be resolved before the election, rather than after the election in the event the recall is successful.
To understand the issue presented by the petition, it is helpful briefly to review the relevant aspects of the history of the recall procedure in California. This procedure was added to the California Constitution in 1911. As originally adopted, the constitutional recall provision explicitly provided, with respect to the requirements applicable to potential candidates, that “[a]ny person may be nominated for the office which is to be filled at any recall election by a petition signed by electors, qualified to vote at such recall election, equal in number to at least 1 percent of the total number of votes cast at the last preceding election for all candidates for the office which the incumbent sought to be removed occupies.” (Cal. Const., former art. XXIII, § 1, par. 5, italics added.) Thus, as originally adopted, the constitutional provision itself clearly required a person to obtain a very substantial number of signatures in order to be placed on the recall ballot as a potential successor should the incumbent be recalled. That number was set at a relatively high figure in order to avoid having frivolous candidates appear on the recall ballot. (See Cal. Const. Rev. Comm., Background Study of Article XXIII (1968) pp. 30-31 [describing the requirement of obtaining signatures equal to at least 1 percent of the total votes cast at the last election as a “workable method [that] probably demands sufficient signatures, at least for statewide offices, to discourage frivolous filing for that office”].)
The constitutional recall provisions enacted in 1911 remained in effect without change until 1974. In 1974, pursuant to a proposal of the California Constitution Revision Commission to reorganize and streamline article XXIII, many of the details of the recall procedure that previously had been set forth in the Constitution were removed from the Constitution and enacted as statutes. One of the provisions that was moved from the Constitution to statute was the provision setting forth the number of signatures required to be submitted by potential candidates in a recall election. In 1974, the Legislature enacted former Elections Code section 27008 (Stats. 1974, ch. 233, § 6, p. 439) which, like its constitutional predecessor, required a potential candidate to submit a petition with signatures equal in number to 1 percent of the total number of votes cast in the last election for the office at issue. (All further statutory references are to the Election Code.)
In 1976, former section 27008 was repealed as part of a reorganization of the statutory recall provisions, and former section 27431 was enacted. (Stats. 1976, ch. 1437, § 4, p. 6447.) Former section 27431 did not directly address the number of signatures required of a potential candidate in a recall election, but provided in more general terms that “[n]ominations of candidates to succeed the recalled officer shall be made in the manner prescribed for nominating a candidate to that office in a regular election insofar as that procedure is consistent with this article [that is, the article dealing with recall elections].” The legislative history of the 1976 legislation indicates that the enactment was intended to reduce the complexity of the recall statutes by consolidating the five major types of recall elections (school board, state, county, city and district elections) and by making the procedure for the nomination of candidates in recall elections similar to the nomination procedure in other elections. Nothing in the legislative history of the 1976 legislation, however, indicates that the Legislature specifically intended to drastically reduce, or indeed to make any change in, the number of signatures that a potential candidate was required to submit in order to be placed on the ballot in a recall election. In 1994, the Elections Code was completely reorganized again, and the language of former section 27341 was moved without change to section 11381.
In light of this constitutional and statutory history and framework, the issue presented in this petition raises the following substantial questions:
(1) Why is respondent applying the 65-to-100 signature requirement set forth in Elections Code section 8062 and incorporated in Elections Code section 8600 to a gubernatorial recall election in light of the circumstances that 1) section 8062 applies to nomination papers for candidates seeking the nomination of a party in a primary election (whose purpose is to sort out candidates to appear in an ensuing general election) and 2) section 8600 applies to write-in candidates seeking simply to have votes in which their names have been handwritten upon a ballot counted in an election (and not to have their names placed on the ballot)? Why is respondent applying this requirement when the procedure here at issue involves inclusion of a candidate’s name on the sole and final ballot for statewide election for office and the Legislature explicitly has directed in Elections Code section 8000 that “[t]his chapter [which applies to primary elections and contains section 8062] does not apply to: [] (a) Recall elections . . . .” (Italics added)?
(2) Because the Elections Code no longer expressly addresses the number of signatures required (or the amount of the filing fee) for nominating candidates in a recall election, but instead simply directs that “nominations of candidates to succeed the recalled officer be made in the manner prescribed for nominating a candidate to that office in a regular election insofar as that procedure is consistent with [the Elections Code’s article on recall elections]” (§ 11381), why should respondent select a requirement for placing a candidate’s name on the ballot that is not applicable in any “regular election” for nominating a candidate to the office of Governor and is in direct conflict with the historic requirement that candidates at a recall election submit signatures totaling one percent of the total number of votes cast for that office at the preceding election (see former Cal. Const., art. XXIII, § 1, par. 5; see also former section 27008)? Why should this approach prevail when there is no indication that at the time the more recent constitutional provisions were added or the ensuing statutory provisions adopted and amended, such a drastic change in procedures was contemplated, and in fact the opposite was contemplated? As noted above, the 1 percent requirement was viewed by the Constitution Revision Commission in 1968 as appropriate for statewide offices. The Report of the Joint Committee for the Revision of the Elections Code (which was incorporated into the Legislative Counsel’s Report to the Governor on Assem. Bill No. 3467, which substituted former section 27341 for former section 27008 and for the first time added language identical to that found in present section 11381) states: “This bill provides that, in all cases, nominations will be made in the manner prescribed for regular elections for that office. . . . There is no reason that the basic procedure for nominating candidates in [a] recall election should be any different from that in any other election.” (Italics added.)
In the alternative, why should respondent not employ the current signature requirement set forth in section 8400, which applies to independent candidates who seek to have their names placed on the ballot in a regular general election for Governor and provides that “[n]omination papers for a statewide office for which the candidate is to be nominated shall be signed by voters of the state equal to not less in number than 1 percent of the entire registered voters of the state at the time of the close of registration prior to the preceding general election” (italics added), rather than the 65-100 signature requirement that is applied (1) to primary elections (§ 8062) whose governing procedures explicitly do “not apply to . . . [r]ecall elections” (§ 8000), and (2) to write-in candidates who seek to have ballots on which their names have been handwritten to be counted but not to have their names actually placed on the ballot (§ 8600 et seq.)? Independent candidates, like the candidates seeking to succeed to office in the event of a majority vote for recall, face no opponents in a primary election, and thus these two types of candidates are most similarly situated.
(3) Why under current recall procedures (§ 11381) could respondent not have made nomination papers available and instructed potential candidates for a gubernatorial recall election that they could collect nomination signatures well before the certification of the recall election, during the period in which the recall petition was being circulated, so as to provide sufficient time to collect the required number of signatures ¾ 74,767 or, in the alternative, 153,035?
The foregoing questions are significant and should be resolved by this court at this time. As we recently stated in Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1153, 1154, “in an appropriate instance, preelection relief not only is permissible but is expressly contemplated,” and “deferring a decision until after the election . . . may contribute to an increasing cynicism on the part of the electorate.”
For example, in the event the recall is successful, a second-place finisher in a crowded field to succeed to the office of Governor might be able to establish that the presence of dozens of legally unqualified candidates made the difference in his or her losing by a percentage point or two, and that he or she readily could have met the requirement of the much larger number of signatures required for a lawful nomination. Similarly, any voter might be able to bring suit, claiming that the victor’s placement on the ballot was invalid and affected the outcome of the election. (See Gooch v. Hendrix (1993) 5 Cal.4th 266, 285.) Should the vote to recall the Governor be successful, we may never know who would have been the legitimate winner of the vote to succeed him, had lawful procedures been followed.
If we were to conclude after the recall election that the signature requirement for placement of candidates on the ballot set by respondent was inappropriate, we would have to nullify the election and cast our state into far more chaos and confusion than exists presently. Careful consideration and resolution of these issues prior to the election is well warranted despite the ensuing delay in the electoral process. By following this course of action, we would enhance rather than thwart the will of the people in exercising their right to vote at a properly conducted recall election.
As the United States Supreme Court observed in the electoral context, “A desire for speed is not a general excuse for ignoring equal protection guarantees.” (Bush v. Gore (2000) 531 U.S. 98, 108.) Nor is it an excuse for ignoring the requirements of California law relating to the conduct of recall elections.
By the vote of a majority of this court, the October 7, 2003, recall election will go forward, despite the substantial doubts outlined above concerning the legal propriety of the procedures followed by respondent Secretary of State. The majority in essence conclude that respondent has done as best he can, given the ambiguities inherent in the Constitution’s recall provision (Cal. Const., art. II, § 15) and in the related statutory provisions. Although respondent was obligated to make an initial assessment as to the proper meaning and application of the relevant constitutional and statutory provisions, it is the responsibility of this court to make the ultimate determination of these fundamental and crucial legal issues. The procedures that respondent has selected have been applied in the past only in the context of local rather than statewide recall elections, and never have been subject to judicial review. Because there appears to be a very substantial possibility that respondent has erred in his interpretation and application of the applicable provisions, this court should not permit the recall election to go forward until this issue has been resolved after full briefing, argument, and adequate deliberation.
Finally, it is apparent that the provisions here at issue are ambiguous, and in some instances internally inconsistent, and deserve the attention of the Legislature, the Constitution Revision Commission, and the California Law Revision Commission.
GEORGE, C.J.
I CONCUR:
MORENO, J.
. . .
Kennard concurrence in Burton case My basis for denying the petition is this:
A writ of mandate may issue to compel a public official to perform a ministerial duty (Code Civ. Proc., § 1085, subd. (a); Schmitz v. Younger (1978) 21 Cal.3d 90, 92-93), or to exercise discretion (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 779-780). But it will not issue to control the manner in which a public official, particularly a constitutional officer like the Secretary of State, exercises discretion. (See Anderson v. Phillips (1975) 13 Cal.3d 733, 737; Lindell Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315.)
The constitutional and statutory provisions governing recall elections vest discretion in the Secretary of State to adapt regular election procedures for use in recall elections, and in particular to adapt procedures for use in qualifying candidates to appear on the recall election ballot to replace the governor in the event the recall succeeds. Faced with a highly confusing statutory scheme, he has exercised his discretion by choosing the method that, in his professional judgment, is the most practical. This procedure was adopted by former Secretary of State March Fong Eu, a Democrat, and it was then followed by former Secretary of State Bill Jones, a Republican. It has been used in each of the four recall elections that has been held in the past ten years. I join in denying the petition because, in my view, it improperly seeks to control the Secretary of State’s exercise of discretion. My colleagues have offered additional grounds for denying the petition; although these may well be persuasive, I see no reason to address them.
Moreover, any intervention by this court at this time would interfere with the recall election as presently scheduled. The recall has qualified overwhelmingly for the ballot, and the wisdom of holding the recall election is not before this court. (DeVita v. County of Napa (1995) 9 Cal.4th 763, 795.) To postpone the election would thwart the will of the People, who have spoken. Petitioner has argued in effect that the Secretary of State has made it too easy for candidates to qualify for the recall ballot. This court should not postpone the election just because there may be too many candidates on the ballot, giving the People too many choices.
KENNARD, J.
Associate Justice
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Majority order in Burton v. Shelley
Petitioner seeks an original writ of mandate to compel the Secretary of State to place on the ballot for the October 7, 2003 election, as replacement candidates in the event the Governor is recalled, only those persons who have qualified for nomination under Elections Code section 8400. This provision, applicable by its terms to independent candidates who wish to run in a general election though not nominated in a party primary (see id., §§ 8300, 8550, subd. (f)), would require, among other things, that recall replacement candidates obtain and submit the signatures of registered voters equal to “1 percent of the entire number of registered voters in the state” (id., § 8400). We are advised that this amounts to approximately 153,000 valid signatures.
No provision of law states expressly what number of voter signatures is necessary to nominate a candidate for a position on a recall replacement ballot. Elections Code section 11381, subdivision (a), provides simply that the nomination of candidates to succeed recalled officers shall be governed by the nominating procedures applicable in “regular elections.” Under authority of this statute, the Secretary of State has adopted a standard of 65 qualifying signatures, derived from the nomination procedures for party primary elections. (Elec. Code, §§ 8062, subd. (a)(1), 8600, subd. (b).) The Secretary of State advises that this policy has been consistently followed by his two immediate predecessors in recent recall elections.
We have concluded that petitioners have not demonstrated a sufficient likelihood of success to warrant the issuance of an alternative writ or order to show cause, which would delay a duly scheduled recall election. The Secretary of State is the constitutional officer charged with administering California’s election laws (Gov. Code, § 12172.5; Assembly v. Deukmejian (1982) 30 Cal.3d 682, 650), and his interpretations of those laws are entitled to substantial judicial deference. (See, e.g., Styne v. Stevens (2001) 26 Cal.4th 42, 53; Kelly v. Methodist Hospital of So. California (2000) 22 Cal.4th 1108, 1118.) That deference is especially great where, as here, the Secretary of State conformed to policies consistently followed by his two predecessors (see Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 801), who represented both major political parties.
The directive of Elections Code section 11381, subdivision (a), is flexible, and the Secretary of State has chosen, from among the available options, a mode of procedure that serves practicality and avoids constitutional concerns. Once a recall election qualifies and is scheduled, the time for potential replacement candidates to circulate nominating petitions is extremely short—as little as one day and no more than 21 days. (See Cal. Const., art. II, § 15, subd. (a) [election must be scheduled within 60 to 80 days after recall petition is certified]; Elec. Code, § 11381, subd. (a) [nominating petitions, containing requisite number of valid signatures, must be filed with Secretary of State no later than 59th day before election].) In this case, only 16 days were allowed. Petitioner suggests that replacement candidates must collect some 153,000 signatures in this abbreviated period, and the Chief Justice proposes an alternative standard—one percent of voters for Governor in the last election—that would still require 74,767 signatures.
Either alternative would risk unconstitutional interference with the ability of any replacement candidate to appear on the ballot, and thus with the electorate’s right to cast ballots for a replacement in the event the incumbent is recalled. The Chief Justice cites no authority for the premise that potential replacement candidates may circulate nomination petitions before it is even clear a recall election will be held. Given the obvious policy considerations of allowing, indeed effectively requiring, such premature circulation, this is a matter best addressed directly by the Legislature.
For these reasons, there appears no clear error in the Secretary of State’s decision to apply a lower voter-signature standard derived from the statutory procedures for primary election nominations. The statutory standard advocated by petitioner, which applies by its terms only to independent candidates who wish to appear on a general election ballot, has no greater inherent application to recall replacement elections than the procedure selected by the Secretary of State and his recent predecessors. The alternative standard proposed by the Chief Justice relies on a formula for recall elections that was removed from the Constitution in 1974 (compare Cal. Const., former art. XIII, § 1, 5, with Cal. Const., art. II, § 15, subd. (a)), and from statutory law in 1976 (see Stats. 1976, ch. 1437, § 4, p. 6647, repealing Elec. Code, former § 27008, and adding Elec. Code, former § 27341). The Secretary of State cannot be faulted for failing to apply a standard that does not explicitly appear in current law.
Petitioner points to a statute declaring that the nomination procedures for primary election candidates “[do] not apply to . . . [r]ecall elections.” (Elec. Code, § 8000, subd. (a).) But this language was adopted at a time when detailed procedures for the nomination of recall replacement candidates were already contained in the Constitution (see Elec. Code, former § 2500, subd. (a), as enacted by Stats. 1939, ch. 26, § 2500, p. 120; see also Cal. Const., former art. XXIII, § 1, 5), and it appears intended only to reflect that fact. In any event, the Secretary of State in a recall replacement election formally acts under Elections Code section 11381 rather than under section 8000 et seq.; the former refers to the latter only as a model.
The Chief Justice suggests the primary-election model is inappropriate, because a primary election is not a “regular election” that nominates a candidate “to . . . office.” But a primary election is a regular election. (O’Connor v. Superior Court (1979) 90 Cal.App.3d 107, 113.) Moreover, the Chief Justice provides no persuasive indication that by use of the language “nominati[on] . . . to . . . office,” section 11381 intended to preclude resort to the qualification procedures for primary elections.
In any event, to derive the 65-signature standard, the Secretary of State might also have referred to the nomination provisions for write-in candidates. These incorporate by reference the signature requirement for primary nominations, but contain no language indicating they are inapplicable to recall elections. (Elec. Code, § 8600, subd. (b).)
Petitioner does not expressly request a stay of the election while his arguments are considered, but it would be necessary, as a practical matter, to issue such a stay in order to resolve his claim before the election was held. Having shown no strong likelihood of success on the merits, petitioner establishes no sufficient reason to stay the scheduled conduct of a duly qualified recall election, which the Constitution requires to proceed in expedited fashion. (Cal. Const., art. II, § 15, subd. (a).)
The current recall provisions contain ambiguities which require the Secretary of State to exercise his discretion. If the Legislature disagrees with the manner in which the Secretary of State has exercised his discretion, it is within the Legislature’s province to specify other procedures.
Accordingly, the petition is denied.
Baxter
Associate Justice
Werdegar
Associate Justice
Chin
Associate Justice
Brown
Associate Justice
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Recall information
TO: Legal Affairs Editors and Reporters
FROM: Lynn Holton, Public Information Officer
DATE: August 7, 2003
SUBJECT: California Supreme Court Takes Action in Recall Cases
The California Supreme Court today unanimously denied relief in four of the five cases filed before it involving the special recall election set for October 7, 2003. In the fifth case, Burton v. Shelley, the court denied relief by a 5-2 vote, which was accompanied by a “speaking order” subscribed to by a majority of the court, a “speaking concurrence” subscribed to by Justice Joyce Kennard, and a “speaking dissent” signed by Chief Justice Ronald M. George and Justice Carlos Moreno. A list of the five cases that were denied today by the California Supreme Court appears at the end of this advisory.
In an order signed by Justices Marvin Baxter, Katherine Werdegar, Ming Chin, and Janice Rogers Brown, the majority concluded that the Secretary of State’s selection of a 65 to 100 signature requirement for candidates’ nominating papers and a $3500 filing fee was appropriate for placing an individual on the ballot for the office of Governor should the recall election be successful. Justice Kennard filed a separate concurring order in which she relied solely on the principle of affording deference to the exercise of discretion by the Secretary of State.
In their dissent, Chief Justice George and Justice Moreno concluded that there are substantial questions concerning the legality of the procedure selected by the Secretary of State in the context of a statewide recall election, given the history of the recall procedure in the state and the provisions of the current statutory scheme. For the reasons stated in their dissent, they would have ordered the Secretary of State not to take further steps to prepare for the state recall election until the issues could be fully considered and resolved by the court.
The three separate orders in the Burton case are attached, as well as a speaking order issued in Frankel v. Shelley. The other three cases were summarily denied.
The five cases in which the court denied review, in order of their date of filing, are:
1. Eisenberg v. Shelley, S117763. (Asserts that the placement of two initiatives on the recall ballot is inappropriate because the recall election is not a “special statewide election” within the meaning of the applicable constitutional provisions.)
[Denied unanimously.]
2. Frankel v. Shelley, S117770. (Seeks to omit from the recall ballot a list of candidates seeking election to the office of Governor and contending that if a majority vote in favor of the recall, the Lieutenant Governor will automatically succeed to the office of Governor.) [Denied unanimously; see attached order.]
3. Byrnes v. Bustamante, S117832. (Raises the same issue as in Frankel concerning the succession of the Lieutenant Governor should the recall election succeed.) [Denied unanimously.]
4. Burton (Mark) v. Shelley, S117834. (Involves the nomination requirements for candidates to be placed on the recall ballot.) [Denied 5 to 2; see attached orders.]
5. Davis v. Shelley, S117921. (Asserts that because of potential use of punch card ballots and consolidation of polling places, voters in some counties will be denied their equal protection right to have their votes count as much as others; that the California Constitution’s prohibition on permitting the officer who is the subject of recall election from being on the ballot to pick a successor in the event of a recall violates the equal protection rights of such candidate’s supporters; and that California’s recall process violates the federal constitutional guarantee of a republican form of government by frustrating majority rule. [Denied unanimously.]
To find the names of the attorneys in the cases, please see the Supreme Court's online case management system at .
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Unconfirmed report that California Supreme Court has denied all five writs, with one concurrence and one dissent on the nominations suit Confirmation when I get it.
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Latest rumor on recall timing No orders until about 3 pm from the California Supreme Court. UPDATE I now hear orders will come by 3:30 pm. UPDATE 2: Still no word. The court spokesperson says that as soon as the orders issue she will send a media advisory. I'll post it here when I get it.
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Updated AP story on Issa departure is here.
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Oliverez v. California recall complaint Ed Still of the Votelaw blog has posted the complaint by the Lawyers' Committee for Civil Rights raising questions about the setting of the date and the rules for the recall election. Changes in voting practices and procedures in "covered jurisdictions" (including Monterey County, California) must be "precleared" with the Departement of Justice in Washington D.C. or a special three-judge court, pursuant to Section 5 of the Voting Rights Act, to make sure the change has no discriminatory purpose or effect. Here are the key allegations in the complaint:
21. In 1974 Proposition 9 was adopted and effected a change in recall election procedures so as, inter alia, to allow for the circulation of a recall petition within 180 days of the election and inauguration of the Governor. Said change constituted a change in voting standards, practices or procedures different from those in force or effect on November 1, 1968, in Monterey County, within the meaning of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
22. Sections 15 and 17 of Article II of the California Constitution provide that, in the event of a gubernatorial recall election, the Lieutenant Governor shall set the date of the election not less than 60 days nor more than 80 days from the date of certification of sufficient signatures. As such, an election to recall the governor is a “special election” within the meaning of 28 C.F.R. § 51.17(a), and the setting of the date of such an election is a “discretionary setting of the date for a special election” within the meaning of 28 C.F.R. § 51.17(b), and as such the setting of the Recall Election date is subject to the preclearance requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
23. Pursuant to 28 C.F.R. § 51.17(a), the conduct of a special election “is subject to the preclearance requirement to the extent that the jurisdiction makes changes in the practices or procedures to be followed.” Id. Plaintiffs are informed and believe that Defendants have made and are making changes in the practices and procedures to be followed in the Recall Election, including but not limited to one or more of the following: (a) to the extent polling places are used, consolidating precincts and otherwise reducing the number of polling places, (b) not circulating sample ballots as far in advance of the election as previously was the practice, (c) not making as many multi-lingual sample ballots, ballots and other materials available as previously provided, and (d) initiating other voting changes resulting from the abbreviated election schedule involving the number of polling places, consolidation of voting precincts, and assignment of election personnel to administer this election.
24. Based on information and belief, Defendants have not received preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, from either the United States Attorney General or the United States District Court for the District of Columbia, for any change in recall election procedures reflected in Proposition 9, or for the setting of the date of the Recall Election or for any of the other changes in the conduct of the Recall Election.
25. The failure of Defendants to secure a determination from either the United States Attorney General or the United States District Court for the District of Columbia that the various changes in recall election procedures and the setting of the Recall Election date do not have the purpose and do not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, constitutes a violation of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
26. The failure of Defendants to secure a determination from either the United States Attorney General or the United States District Court for the District of Columbia that the various changes in recall election procedures and the setting of the Recall Election date do not have the purpose and do not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, renders the implementation of these changes legally unenforceable.
What happens if this Section 5 claim is successful? A court will enjoin the recall election until the state seeks, and obtains, preclearance for the recall rules, proving that they have neither a discriminatory purpose or effect.
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Issa dropping out See this report.
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Recall decisions soon? A reporter tells me that he heard from the California Supreme Court that a decision whether to grant or deny review on the recall writs will come "early afternoon."
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Oped on Georgia v. Ashcroft Luke McLouglin published "Swing Voter: O'Connor's Redistricting Ruling Gives Politicians Room to Succeed or Fail" in the July 22, 2003 Los Angeles Daily Journal (no link currently available).
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McCain-Feingold news and commentary CNN offers "White House Outlines Defense of Campaign Finance Arguments." FEC Commmissioner Michael E. Toner offers this oped in the Boston Globe on the funding of party conventions.
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ACLU files another punch card suit in recall See this A.P. report.
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A Davis resignation would not scuttle the recall I blogged about this in June here, explaining why this is so---but many people still ask the question. Now that the election is certified, I don't see how anyone can argue that the petition is not yet filed under the rules of Elections Code 11302. The recall goes forward. If Davis resigns now, Bustamante is governor and would remain governor if a majority vote no on the recall. If a majority vote yes, Bustamante would be replaced by whoever is a successor in part 2. And I don't think anything would prevent Bustamante himself from running in part 2.
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Why did Bustamante announce now? See this A.P. report, stating that Lt. Gov. Cruz Bustamante has indicated he will run on part 2 of the recall ballot. Why did he announce now, rather than wait to see if the California Supreme Court will grant review in the cases arguing that he automatically becomes governor should Davis be recalled? I think there are three reasons: (1) Bustamante knows that the claim before the California Supreme Court is without merit; (2) He wanted to act before another prominent Democrat announced entry into the race (most likely Insurance Commissioner John Garamendi) so as to discourage other Democrats from running and splitting the vote; and (3) He wanted to steal some of the headlines from Arnold Schwarzenneger, who made the surprise announcement that he is running. Nomination papers are due Saturday at 5 pm, unless we see a delay from the California Supreme Court, expected to act on the petitions later today.
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Shelley's opposition papers to Davis are now available here on Findlaw. (Davis's reply is due at 9 am---if you have an electronic version, please e-mail it to me.) The opposition comes down strongly against Davis's claim that he should appear on part 2 on the ballot, but less strongly on the (in my view, stronger) claim that the use of punch card voting and consolidation of precincts creates an equal protection violation. On this point, the introduction states: "The constitutional requirement to hold the recall election within 80 days of certification is clear and unconditional. Petitioners cite no case in which a court has moved a constitutionally-imposed election date because of the burdens it might impose. Of course, if specific problems do occur, appropriately-tailored judicial relief may be available to remedy these specific problems."
This seems wrong to me. If these problems may well be anticipated, it makes more sense to deal with them now and prevent the harm from ever occurring, then to try to undo harm once it has occurs. The question is whether there is enough evidence of harm now or whether, as the Shelley brief contends, the concerns are just "speculative."
In general, however, this is a very impressive brief written under terrible time constraints. It comes down hard on Davis's position on the merits---surely an uncomfortable position for the Democratic attorney general and secretary of state.
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Wednesday, August 06, 2003
California Supreme Court expected to decide on Thursday whether to grant review on five recall-related writs The final brief in the Davis v. Shelley writ is due at 9 am Thursday morning. Dan Weintraub here quotes a California Supreme Court spokesperson as saying that before the close of business tomorrow the court "will issue orders either denying review or taking up the cases. If the court decides to take up one or more of the cases, the justices will call for additional briefing and hold oral arguments before issuing an opinion." The cases to watch: Davis's (over punch card voting and consolidation of polling places) and Burton's (over the rules for nominations).
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Recall litigation news and commentary The Los Angeles Times offers "Courtroom Challenges Stand in Recall Path" (mentioning this blog). A.P. offers "Officials say combining polling places a long-accepted practice." The Sacramento Bee offers "Civil rights group joins legal fight against recall," noting yet another lawsuit filed (this one on Voting Rights Act issues). The San Francisco Chronicle offers "The tough issues before the supreme court; Justices must act quickly, with election 8 weeks away."
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"Less Power, More Influence" Professor Rick Pildes wrote this oped on Georgia v. Aschroft in Saturday's New York Times.
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Tuesday, August 05, 2003
The Davis recall litigation in the California Supreme Court: what's next? By the end of the day Thursday, the California Supreme Court will have before it the responses to the various writs filed by a number of parties regarding the Davis recall. When will the California Supreme Court act? It is of course anyone's guess. My guess is that if the court believes there may be merit to the Burton petition (challenging the rules for nominations--65 signatures and $3,500) we may see an order as early as Friday. The current nomination deadline is Saturday at 5 pm. If the court may ultimately rule that the nomination rules must be changed, it will be much less disruptive for the court to make that change before everyone believes the slate of candidates is set. The court could well delay things for at least a few days to sort things out. And if it delays the nomination procedures, it may need to delay the recall itself, because other things must happen soon (such as the Secretary of State sending the names of the candidates out for the preparation of ballot materials). So Friday may be an important day.
Of course, this leaves aside other litigation in the federal courts. If the state court does not act by the end of the week, something may happen on the federal level by next week.
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BCRA defendant and amici briefs filed today Links to some of the briefs are now available on SCOTUSblog. All the briefs should be posted some time tomorrow at the website of the Campaign Legal Center. Reply briefs are due in a couple of weeks. Oral argument is September 8.
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Monday, August 04, 2003
Analysis of Davis v. Shelley You can find Governor Davis's writ petition here. You can find the California Supreme Court register of actions for the case here. The California Supreme Court has given the Secretary of State until Wednesday to file a response, and the Governor until Thursday to file an optional reply.
The three claims The governor advances three claims. The first one may well have merit. The second one likely does not. The third claim probably is non-justiciable (meaning a court will not grant relief under that claim).
First Claim: Equal protection violation for selective use of punch card voting The meat of Davis's first claim is much like that expected in the NAACP lawsuit (see three posts below this one). Here are the operative portions of the writ petition:
40. Voters who reside in counties in which punchcard voting systems are used, including voters who reside in Los Angeles County, are substantially less likely than citizens in other counties to have their votes counted than residents of other counties that use more reliable voting systems. African Americans, Asian Americans, and Latinos will be disproportionately denied the right to have their votes counted because they are more likely to reside in counties, like Los Angeles, that plan to use punchcard voting systems for the recall election, and these groups are disproportionately affected by the use of punchcard voting systems.
41. Voters who reside in counties, including Los Angeles County, that plan to reduce the number of precincts and poll workers, are also substantially less likely to have their votes counted than residents of other counties. Voters who have to travel to new polling places are more likely to encounter crowds, confusion, and delay, and are less likely to vote than voters who can vote at their normal polling places. African Americans, Asian Americans, and Latinos will be disproportionately denied the right to have their votes counted because they are more likely to reside in counties, like Los Angeles, that plan to reduce the number of precincts and poll workers.
As I have written earlier, the selective use of punch card voting may well "value one person's vote over that of another" in violation of equal protection rights recognized Bush v. Gore. There have been at least four lawsuits brought challenging the use of punch card voting in this manner. Three settled. In the fourth case from federal district court in the Northern District of Illinois, Black v. McGuffage, the Court recognized the validity of such a claim. A court could well delay the election on this basis, especiallywhen combined with other problematic elements of the voting, such as problems with pollinc places. (More about McGuffage in the 2003 Election Law casebook supplement available by clicking on the link on the right.)
Second claim: Equal protection violation because Davis may not appear in part 2 of the recall ballot As we know, Davis is out of office if at least 50% +1 vote for his recall, but his successor may be elected with just a plurality. Under California law, Davis may not run on part 2 of the ballot. The claim is that this denies Davis and voters equal protection. As the writ puts it: "Governor Davis can be recalled from the office if he receives 49.9 percent of the vote, yet Larry Flynt can be elected to the same office if he receives only 20 percent, or even less." As superficially attractive as this notion is, I believe it is not an equal protection violation. Part 1 of the ballot asks in effect: Do a majority of California voters believe Governor Davis should be recalled under a rule that allows his successor to be chosen by only a plurality of the vote? If the answer is yes, the successor is chosen by a plurality.
To interpret the equal protection clause to say that Davis must be allowed to run on part 2 is to have a very narrow view of the permissible forms of democratic governance. If a majority vote yes on part 1, why should courts say it is impermissible to structure a plurality vote for part 2? I think the plurality requirement is very bad policy, but I do not see the constitutional violation, nor do I predict courts will find one. In this way, it is no different from rules such as term limits, which prevent certain candidates from running for office, or rules for runoff elections. States are permitted to structure their means of choosing candidates from an array of permissible voting choices.
Third claim: The recall rules violate the Guarantee Clause of the Constitution Article IV of the United States Constitution provides that every state is guaranteed a "Republican form of government. " Those words are hardly self-defining, though for years opponents of the initiative process have attempted to argue that the initiative process, or some aspects of it, violate the clause. I have explored these attempts in detail in this paper. Most courts have rejected such claims as "non-justiciable" for many years, meaning that courts will not entertain such claims. Although there is some indication the United States Supreme Court might now entertain such a claim in certain cases, I doubt very much that the Court would do so in the context of a challenge to the recall. Perhaps the hope is that the California Supreme Court will accept this argument, and the United States Supreme Court will hold the matter non-justiciable. I think that unlikely. If the California Supreme Court goes there, I expect the United States Supreme Court could follow. More details on why the courts should keep away from rewriting the rules for democratic governance using the Guarantee Clause in my paper.
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Oral argument orders in the BCRA case You can find the details courtesy of SCOTUSblog here.
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Sunday, August 03, 2003
Yet another recall lawsuit See this Chronicle report.
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Friday, August 01, 2003
What do all the recall-related lawsuits mean? Are we headed for another Florida? I have been on the road, with very little access to e-mail or the news. I have been getting a number of press calls, however, so I think I have relatively updated information about what is going on with the myriad lawsuits that have been filed. First, my list of the suits that I know about, and then a bit about the relative merits of each suit as I understand it. My bottom line is, as it has been all along, that a delay of the recall election may be inevitable, particularly because of issues related to the means of balloting (e.g., punchcard issues, polling place issues). The legal strategy of those opposed to the recall is part of a larger political strategy to delay the recall and, if possible, to scuttle part of it. I think that the election will eventually take place, perhaps with different rules for collecting signatures, at a date later than October 7 but earlier than March.
Now, onto the lawsuits---I will not use the official names of the cases, as I am without access to that information:
The circulator suit This suit was filed before the election was certified, claiming that some of the petition circulators were not registered voters in violation of California law and therefore it was an error for the secretary of state to certify the election. As I have explained before, the registered voter requirement likely is unconstitutional under Buckley v. American Constitutional Law Foundation, California courts have rarely punished voters for the sins of the circulators, and given the massive number of signatures gathered under proper conditions this is likely harmless error. I do not see this case going anywhere. It has already gone up to the California Supreme Court once on the trial court's decision not to grant a temporary restraining order.
The 11382 suit on who gets to vote on part 2 of the recall ballot This suit filed by USD law professors ended with a federal district judge in San Diego striking down a California statute holding that only those who vote on the yes/no first part of the recall get their votes counted on part 2 (the successor question). The state has said it will not appeal, which should end the case, but I have heard someone else is trying to intervene, perhaps to see if this litigation can be brought to the Ninth Circuit, perhaps to delay the recall election. On the merits, I think the court was correct to strike the rule down, because it was hard to come up with any valid justification for the law. I would be surprised if this suit delays anything further.
The "if appropriate" suits. There are now two suits pending in the California Supreme Court raising the argument that the "if appropriate" language in the California constitution means that the Lt. Governor becomes governor automatically if there is a successful recall. I have blogged extensively (see below) on why I believe this claim is without merit. The final papers in these cases are due on Wednesday.
The nomination rules case The California Supreme Court is considering a petition filed by Mark Burton on the question whether it was appropriate for the secretary of state to decide that any California voter can run for governor with only 65 signatures and a $3,500 payment. This claim may well have merit. The recall statutes say that generally the usual rules for nominations apply, but those usual rules contained in the Elections Code 8000 series say that the rules do not apply to recall elections. The secretary is using 8062, which applies to partisan primaries, and a variation on the rule for independents. It seems clear that these rules should not apply to the recall, which is not a partisan primary. The problem is, it is not clear what rules should apply if these do not.
The Racial Privacy Initiative suit A suit filed in the California Supreme Court claims that it is not appropriate to put initiatives on the ballot with a statewide recall, because a recall is not a special election under the California Constitution. I have not looked into the merits of this claim.
The MALDEF suit I understand from a reporter that MALDEF has filed suit claiming that certain voting rules for covered counties in California need to be precleared in order to satisfy Section 5 of the Voting Rights Act. I don't have any further details.
The upcoming punch card ballot suit I believe that this is the suit to watch. The claim is that the selective use of punch card balloting in some counties but not others violates equal protection under Bush v. Gore. That case held it is unconstitutional to "value one person's vote over that of another" (paraphrase here) and some have claimed that the use of punch card balloting in some counties but not others values the votes of some persons over others because punch card balloting has relatively high error rates. That is, if you live in a county using punch card ballots, you have a greater chance of casting a vote that won't count. (There also may be allegations related to the consolidation of polling places in some areas.) The punch card claim was brought in Georgia, Florida, California and Illinois. All the cases settled except for Illinois. In Black v. McGuffage, an Illinois district court accepted the theory. (More about the case on page 9 of the Election Law 2003 supplement, page 9---click on the link to the right on the blog). This case has real potential. We could see a single federal judge halt the election to resolve this kind of claim. I would not be shocked to see the Ninth Circuit get involved in this suit rather quickly, and United States Supreme Court involvement is not out of the question.
Another Florida? Fortunately, all of this is before the election, not after. Fortunately, this is not a national election on the line with an imminent transition of power. But other ingredients are here: poorly drafted statutes, smart lawyers, multiple litigation, problems with voting machines, courts being asked to intervene. As I have written elsewhere, courts wanting to avoid another Florida will be more likely to delay the recall then to take a chance with massive problems on election day and lawsuits filed after election day.
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Today's recall news Sacramento Bee; Santa Rosa Press Democrat (interview with Barry Keene); Oakland Tribune; San Francisco Chronicle; Los Angeles Times.
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