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:
1) K. STARR for McCONNELL PLAINTIFFS/**20 mins.
2) B. BURCHFIELD for POLITICAL PARTY PLAINTIFFS/**40 mins.
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:
1) F. ABRAMS for McCONNELL PLAINTIFFS/**35 mins.
2) L. GOLD for AFL-CIO/15 mins.
3) J. SEKULOW for MINOR PLAINTIFFS/10 mins.
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.
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.
Roundtable on Political Scientists as Expert Witnesses
Testifying on the Bipartisan Campaign Reform Act
Date: Friday, Aug 29, 8:00 AM
Diana F. Dwyre, California State University
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
Life After Reform: Perspectives on the
Presidential Election of 2004
Date: Friday, Aug 29, 2:15 PM
Michael J. Malbin, Campaign Finance Institute
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
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.
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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)
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).
. . .