Election Law
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The law of politics and the politics of law: election law, the California recall, campaign finance, legislation, voting rights, initiatives, redistricting

Rick Hasen's web log (blog)

Tuesday, September 30, 2003
"Vote Count May Take Longer in Recall Election*Counties predict that the outcome will be delayed because the race is expected to be very close. They have 28 days to finish the work." The Los Angeles Times offers this report UPDATE: See also this San Francisco Chronicle article.

posted by Rick 7:21 AM
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Fallout from Bustamante campaign finance decision See this Sacramento Bee report.

posted by Rick 7:17 AM
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"Major challenge to Minnesota campaign laws headed to court" The Minnesota Star Tribune offers this report (link via How Appealing).

posted by Rick 7:12 AM
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Unintended effect of McCain-Feingold? See this report in The Hill.

posted by Rick 7:08 AM
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Tomorrow this blog moves to a new site Stay tuned for details.

posted by Rick 7:08 AM
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Monday, September 29, 2003
"When Have Recalls Succeeded in California?" Joshua Spivak offers these thoughts.

posted by Rick 3:27 PM
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After the votes are cast on October 7 in California's recall, what will we know, and when will we know it? Many voters and others are probably assuming that some time late on October 7, we will know whether Governor Davis has been recalled, and, if so, who his successor will be. That might well be true, if this U.S.A. Today/Gallup/CNN poll is accurate. The poll shows the recall succeeding by a large margin and Schwarzenegger leading Bustamante by 15 percentage points. Other polls have shown a much closer race. If we have a close race on Part 1, Part 2, or both, it may be many days after the election until the results are known.
It will take a while for elections officials to count all the abstentee ballots, some of which will be turned in on election day, as well as provisional ballots (ballots cast where there is a question about the voter's qualifications to cast the vote). County elections officials have up to 28 days to get their final results to the Secretary of State. (Elections Code section 11328 (usual rules for conducting, canvassing, and declaring results of election apply in recall election); section 15308 (elections official certifies results within 28 days of the election).)
After the results, there may be a request made for a voter recount. (Elections Code section 15620 et seq.) It is also possible for elections officials (Elections Code 15610 et seq) or courts (Elections Code section 15640 et seq.) to order a recount. Following certification, there is also the possibility of an elections contest. Elections Code section 16100 sets forth the grounds for an election contest. Finally, because the Ninth Circuit left open the possibility of a federal equal protection or Voting Rights Act claim if the election is close (see here), we could potentially see litigation in federal court.
For those who care about finality and an end to litigation, we should hope that the election is not close, whatever the outcome.

posted by Rick 10:04 AM
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"A 'Clean Sweep' for Elections" Micah Sifry writes this Los Angeles Times oped, which uses the California recall to make the case for public financing of elections.

posted by Rick 9:47 AM
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Far-flung election law articles How Appealing links to Enforce Federal Voting Law in the Saipan Tribune and this Sarasota Herald Tribune report on critics of touch screen voting.

posted by Rick 9:45 AM
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"'527' Committees' Success Could Aid Democrats" See this Washington Post report.

posted by Rick 9:38 AM
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Will Baude asks me (and I answer) 20 questions See here over at the newly-designed Crescat Sententia. Now that Will has moved to Moveable Type, can my move be far behind? Stay tuned.

posted by Rick 9:35 AM
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"Campaign law requires 'I approved this message' line in ads" A.P. offers this report.

posted by Rick 7:22 AM
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Schotland on Shrink Missouri and sham campaign finance reform Roy Schotland has an interesting piece at BNA's "Money and Politics Report," "Shrink Missouri: How Sham Reform Fooled the Voters and the Court and What it Means for BCRA." Unlike the piece by Ned Foley published by BNA a few weeks ago, this one does not appear to be available for viewing by non-subscribers. If that changes, I'll post a link.

posted by Rick 7:20 AM
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Thursday, September 25, 2003
Media corporations and campaign finance exemptions Under federal campaign finance law, corporations and unions are prohibited from directly spending funds on advertisements expressly advocating the election or defeat of candidates for federal office. Instead, corporations or unions must set up a separate PAC (with limits on who may be solicited to contribute) to fund such advertisements. Under the new BCRA (whose constitutionality is currently being considered by the Supreme Court), this separate PAC requirement for corporations and unions was extended to broadcast advertisements 60 days before a general election (or 30 days before a primary), featuring a candidate for federal office, and targeted at the relevant electorate. (This is one of the ways that BCRA seeks to close the "issue advocacy" loophole.)

Many critics of campaign finance regulation point to the exemption in these laws for newspaper (and broadcast) articles, editorials, and commentaries. The argument goes: why should General Motors be stopped from running an ad saying "Vote for Bush," but Rupert Murdoch need not be? In the Austin case, the Supreme Court rejected the argument that it would be an equal protection violation to treat media corporations different from other corporations. The Court wrote:
    The media exception insures that the Act does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events. A valid distinction thus exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public. Although the press' unique societal role may not entitle the press to greater protection under the Constitution, it does provide a compelling reason for the State to exempt media corporations from the scope of political expenditure provisions.

Austin, 494 U.S. at 667-68.

The argument resurfaced at the oral argument in BCRA, with Justice Scalia leading the charge. At issue is the BCRA provision that would not allow General Motors to run a broadcast advertisement featuring a candidate for federal office within 60 days of the general election (or 30 days of the primary) and targeted at the relevant electorate except through a separate segregated PAC. General Motors could run such an issue advertisement paid for with its treasury funds in a newspaper (or through the mail or internet), though the FECA prevents it from expressly advocating the election or defeat of a candidate in those venues. General Electric, Justice Scalia noted, through its NBC subsidiary, could engage in such issue [update: I meant: candidate] advocacy in a broadcast. (It turns out that television stations feature federal candidates on their news programs, but almost never endorse candidates or run commentaries endorsing candidates for federal office.)

My memory may be faulty, but I don't believe any party has made the equal protection argument in the BCRA case. (The Paul plaintiffs claimed that the Libertarian Party was entitled to an exemption under the Press Clause, but that's not the same thing.) [Update: My memory was faulty. As a few readers pointed out, the NRA raised this issue both in the district court and in the Supreme Court, though in the Supreme Court it was phrased not in terms of Austin being overruled but rather that the facts have changed, i.e., that media corporations can no longer be separated from other corporations.] The court may nonetheless reach the issue, particularly because, as I've
noted, other parts of Austin may be up for grabs.

A few years ago, I wrote an article entitled "Campaign Finance Laws and the Rupert Murdoch Problem," 77 Texas Law Review 1627 (1999). In the article, I suggested that if political equality were accepted as a compelling interest (as it is not today for campaign finance regulation), Congress might well consider repealing the media exemption--requiring all express advocacy to be funded with campaign finance vouchers. But the question here is different: does Congress have the authority to carve out an exemption for media corporations to the separate PAC requirement applicable to corporations wishing to air broadcast advertisements shortly before a federal election featuring federal candidates for office?

The election law list had an interesting discussion about this issue. Spencer Overton started the discussion here by suggesting that the question whether the institutional press plays the unique societal role is an empirical one about which the Court should defer to Congress. (See also here) Eugene Volokh took the position that if we are concerned about the potential for corruption and the sale of access, the media exception seems unjustified (See here and here; see also remarks along these lines by Charlie Smithson, Bob Bauer, and Joe Birkenstock.)

Finally, Marty Lederman here offered a number of new insights on way in which the Court could well uphold the media exception. Among other things, Marty draws a convincing parallel to the Court's religious exercise jurisprudence.

posted by Rick 10:22 AM
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Article on partisan redistricting case to be heard by the Supreme Court in January The Hill offers this article on the Veith case (thanks again to How Appealing for the link). Update: Marty Lederman tells me that the Veith case will be argued on December 10.

posted by Rick 8:00 AM
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Touch screen voting and legal challenges One of the issues I have not been able to keep up with because of the recall and the BCRA (McCain-Feingold litigation) are legal challenges to touch screen voting. A number of jurisdictions are moving to touch screen voting, which lets one use a device like an ATM machine to cast a vote. I have received a great deal of e-mail from people who distrust such machinery, out of concern about fraud. One of the issues is whether there is a paper trail to verify how people voted; another is whether these systems may be hacked into and votes changed. There have also been allegations made of improper conduct by companies who make such machines, including claims that some research into voting technologies has been funded by these companies. I confess I have very little knowledge of the merits of such claims, but hope to link to more on this issue and to learn more about it. In the meantime, there is a lawsuit pending in the Ninth Circuit over the use of punch card machines. Oral argument in Weber v. Townsend will be heard on October 8 in the Ninth Circuit in Pasadena. The plaintiff, Susan Marie Weber, has this web page devoted to the lawsuit. Weber, a non-lawyer, is representing herself pro se. UPDATE: One reader writes to say that the Weber claim likely will fail because it was brought as a claim for deprivatin of federal constitutional rights, rather than as a claim under state law. We'll see how things go.

posted by Rick 7:43 AM
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"Political Use of Tax Exempt Groups is Cited in Study" The New York Times offers this report. (Thanks to Steven Sholk for the pointer.) See this Washington Post article.

posted by Rick 7:31 AM
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Voting rights for ex-felons The Christian Science Monitor offers this report (thanks to How Appealing for the pointer).

posted by Rick 7:27 AM
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"Recall Finds Loopholes In Campaign Finance Law; Money Flowing for Davis, Candidates" The Washington Post offers this report.

posted by Rick 7:24 AM
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Wednesday, September 24, 2003
New Book on American Election Reform Oxford University Press has just released Rethinking the Vote: The Politics and Prospects of American Election Reform, edited by Ann N. Crigler, Marion R. Just, and Edward McCaffery. The volume grew out of a post-Bush v. Gore conference at USC focused not so much on the case itself but on what lessons Florida 2000 teaches us about election reform. I've got a chapter in the book entitled: "After the Storm: The Uses, Normative Implications, and Unintended Consequences of Voting Reform Research in Post-Bush v. Gore Equal Protection Challenges." It certainly will need updating in light of current events.

posted by Rick 5:53 PM
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Others' thoughts on yesterday's recall decision Pam Karlan posts her comments here at JURIST. Larry Solum offers his thoughts on the procedural aspects of the case here.

posted by Rick 3:56 PM
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Speaking with Chuck Bell at Federalist Society Lunch in Santa Monica tomorrow Here are the details:
    Topic: Legal Issues Surrounding the Recall Election

    Speakers: Charles H. Bell, Jr. and Richard L. Hasen

    Date: Thursday, September 25, 2003, 12:00 Noon

    Place: Law Offices of Alschuler Grossman Stein & Kahan
    The Water Garden, 1620 26th St.,
    Fourth Floor, North Tower, Santa Monica

    MCLE Credit: One Hour

    The recall election has been the subject of numerous pre-election challenges, and no doubt will be subject to additional post-election challenges. Mr. Bell is the preeminent Republican election lawyer in the state. He is the General Counsel of the California Republican Party and has advised numerous Republican candidates for high office. Professor Hasen is the foremost election-law scholar in the nation. He is the author of a casebook on election law and publishes a widely read web log on election law. He has filed numerous amicus briefs in prominent election law cases.

    The cost of the luncheon is $28 at the door.

If you have questions, send an e-mail to jrosen-at-horvitzlevy.com.

posted by Rick 11:04 AM
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Recall litigation news and commentary New York Times; Washington Post (and this editorial and don't miss the Post's "Calif. Potential For Errors Noted; Number of Candidates in Recall Vote Is Challenge for Most Balloting Systems"); Christian Science Monitor; Los Angeles Times (and this editorial as well as this story on the Sacramento Bee controversy over approving the blog remarks of Dan Weintraub); San Francisco Chronicle; Sacramento Bee; San Diego Union Tribune; A.P. (on post-election challenges); The Recorder; a Doug Kmiec oped.; Wall Street Journal (and this editorial).

posted by Rick 7:16 AM
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Tuesday, September 23, 2003
Consistency with Prop. 209 case on abuse of discretion? In responses to my earlier post related to the abuse of discretion standard in the recall case, a reader writes:
    It seems to me that one can readily distinguish Judge O'Scannlain's reversal of the district court's preliminary injunction decision in Coalition for Economic Equity v. Wilson (the Prop 209 case) from the refusal to disturb the district court's decision today in the en banc opinion in Southwest Voter Registration.

    To reconcile the two opinions, one need simply conclude that the district court's legal analysis in the Prop 209 case was not even arguably correct, whereas the district court's resolution of the Bush v. Gore EP and VRA issues in Southwest was arguable. Judge Henderson flatly misapplied the law in the 209 case, so his injunction had to be reversed as an abuse of discretion. Judge Wilson did not, so his refusal to grant an injunction stands. Whether or not Wilson was correct on the substantive legal issues, the en banc court couldn't say he was out-to-lunch wrong. Bush v. Gore is not the clearest precedent.

That certainly is one way to distinguish the cases. However, since when do we have 11 appellate judges deferring to a single district judge on what the law means? Maybe the other Ninth Circuit authority on this point cited in the opinion allows that (I have not read those cases). But this is an odd rule indeed. Given that in many cases (as in the recall punchcard case), the preliminary injunction is the whole ballgame, it gives single district court judges tremendous power when appellate courts will defer not only to the district court's findings but to its "arguable" legal calls as well.

posted by Rick 1:52 PM
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Fourth Circuit Campaign Finance case The court has just issued this opinion in North Carolina Right to Life v. Leake. Among other things, the court strikes down North Carolina's context-based test for express advocacy as unconstitutionally vague and overbroad under the earlier Fourth Circuit precedent of FEC v. Christian Action Network. (Thanks to a number of readers who pointed the opinion out to me.)

posted by Rick 1:48 PM
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Breaking News: ACLU will not appeal decision to the Supreme Court Here is the text of the ACLU of Southern California statement:
    We are disappointed by the Ninth Circuit's en banc decision. We remain firmly convinced that using voting equipment officially declared by the state to be obsolete, in a number of counties with a high concentration of minority voters, violates the equal protection clause of the Fourteenth Amendment and the Voting Rights Act. Indeed, we continue to believe that the geographical and racial disparities at issue in this case are far more troubling than the legal claims presented in Bush v. Gore. As a result, we remain deeply concerned over the fairness and accuracy of California's October 7th election. We can only hope, along with all Californians, that it will not turn into another Florida debacle.

    With the election just two weeks away, we do not believe we should prolong the uncertainty any longer. At this point, it is important that the candidates, the campaigns, and the voters know that the election will be held on a date that is certain. Therefore, we have reluctantly decided to accept the Ninth Circuit's verdict and will not ask the
    Supreme Court to review the decision. We will, however, press forward vigorously with our national campaign for election reform and will fight to ensure the fairness and accuacy of all voting procedures in every future election, including the 2004 Presidential contest.

posted by Rick 12:00 PM
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Larry Solum offers his thoughts on the election See here.

posted by Rick 11:52 AM
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Some analysis of the Ninth Circuit opinion [Disclosure: I filed an amicus brief supporting the ACLU's position in this case.] Here are my first impressions regarding the short legal discussion in the per curiam opinion.

1. The opinion seems to leave open the possibility of a post-election challenge to disparities caused by punch card ballots. On pages 11-12, the court writes that "plaintiffs....are legitimately concerned that the use of the punch-card system will deny the right to vote to some voters who must use that system. At this time, it is merely a speculative possibility...that any such denial will influence the result of the election." (Emphasis added.) My translation of this is that if there is a close election, where the margin of victory may be exceeded by the margin of error with the punch card machines, some kind of remedy such as a recount might be required. The problem with this line of reasoning, however, is that a recount cannot deal with some of the problems with punch cards, such as overvotes. But we may expect further post-election litigation.

2. This was clearly written as a compromise decision. The panel was obviously split on what meaning, if any, Bush v. Gore has. The sum total of the discussion of the case on the merits is one paragraph on page 8:
    We have not previously had occasion to consider the precise equal protection claim raised here. That a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ. In Bush v. Gore, the leading case on disputed elections, the court specifically noted: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” 531 U.S. at 109. We conclude the district court did not abuse its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.

Note how the paragraph does not fit together.The second sentence tells us reasonable people may differ on the case's meaning. The third sentence seems to suggest the Bush precedent does not apply in this case. It concludes with a statement that the district court did not abuse its discretion because the law is unclear. Query whether this is consistent with Judge O'Scannlain's approach in the 209 case (see two posts below this one)---the court here simply never decides what the law is, but seems to say that because reasonable minds could differ, 11 appellate judges will defer to a single district judge on this question, at least at the preliminary injunction stage. And why was this not done for Proposition 209.

3. The opinion leaves open the possibliity of further voting rights claims based on voting technology disparities. Besides fudging the equal protection issue, the opinion also states that the claim under section 2 is "stronger." The reason the panel said that the section 2 claim failed is that "[t]here is a significant dispute in the record, however, as to the degree and significance of the disparity. Thus, although plaintiffs have shown a possibility of succes on the merits, we cannot say that at this stage they have shown a strong likelihood." By writing the opinion in this way, the court has tried to do as little as it could to make any new voting rights law or prejudice future litigation over the use of punch cards while still reversing the three judge court.

4. Incorrect statement of law in the opinion? On page 10, the court says that "interference with an election after voting has begun is unprecedented." I believe this is contradicted by Clark v. Roemer, 500 U.S. 646 (1991), where, if I remember correctly, absentee balloting had already begun. (That was a section 5 case, but that should not matter---if a federal court can enjoin an election for a federal statutory violation, surely it can do so for a constitutional violation as well.)

5. To the Supreme Court? I do not know whether or not the ACLU will seek to appeal to the United States Supreme Court. I think the chances of such an appeal being successful --- particularly if directed in the form of a motion for an emergency stay to Justice O'Connor, the circuit's justice --- are slim to none. The en banc court did the Supreme Court a tremendous favor. Had the Supreme Court issued the identical decision as issued here, no doubt it would have been excoriated for making a second political decision---both favoring Republicans over Democrats. I don't think that would have been a fair characterization, but such claims are made routinely in these cases these days.

6. Post-election litigation? As noted in point 1 above, this is certainly possible. Also, I would not be surprised to see litigation on election day. If, as I predict, there are problems in places like Los Angeles (which has consolidated 5,000 polling down to 1,800) with long lines, will a judge order the polls to remain open longer? Will such a ruling be subject to challenge?

posted by Rick 9:40 AM
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My analysis of en banc reversal is coming soon.... You can access the text of the ruling in the meantime here.

posted by Rick 9:29 AM
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Judge O'Scannlain on when a judge abuses his or her discretion in misapplying the law In advance of today's Ninth Circuit opinion in the recall punch card case, it is worth remembering what Judge O'Scannlain had to say about the issue of the abuse of discretion standard when the judge gets the law wrong in another controversial Ninth Circuit case, this one arising out of Proposition 209's ban on affirmative action:
    An abuse of discretion occurs if the district court "bases its decision on an erroneous legal standard or on clearly erroneous findings of fact." American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1062 (9th Cir.1995) (citation omitted). We review the legal issues underlying a decision to grant an injunction de novo, as well as the conclusion that plaintiffs are likely to succeed on the merits of those issues. [FN9] International Molders' and Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir.1986).

    FN9. Plaintiffs contend, as an initial matter, that we have no authority to review the "underlying merits" of the preliminary injunction that the district court entered. Plaintiffs are correct to the extent that we will not reverse a preliminary injunction just because we would have arrived at a different result if we had applied the law to the facts of the case. Sports Form, Inc. v. United Press Int'l, 686 F.2d 750, 752 (9th Cir.1982); see also Associated Gen. Contractors of Cal. v. Coalition for Econ. Equity, 950 F.2d 1401, 1419 (9th Cir.1991) (O'Scannlain, J. concurring) (pointing out that detailed discussion of statistical evidence to determine constitutionality is inappropriate to determine constitutionality on appellate review of preliminary injunction), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992). Where, as here, however, the issue is whether the district court "misapprehended the law with respect to the underlying issues in litigation," Sports Form, 686 F.2d at 752 (citations omitted), we assuredly may assess whether the district court got the law right. See Glick v. McKay, 937 F.2d 434, 436 (9th Cir.1991) (explaining that where facts established or of no controlling relevance, constitutional issue subject to "plenary" review); Nelson, 799 F.2d at 550 n. 1 (explaining that abuse of discretion will be found if district court "applied incorrect substantive law") (citation omitted).

    The parties to this appeal dispute whether the district court relied on an erroneous legal standard, not whether the district court wrongly applied the right legal standard to the facts of the case. Where the issue is whether the district court got the law right in the first place, we do not defer review and thereby allow lawsuits to proceed on potentially erroneous legal premises.

Coalition of Economic Equity v. Wilson, 122 F.3d 692, 701 (9th Cir. 1997).
Why is this language relevant? Because some of the judges at the hearing yesterday, including Judge O'Scannlain, seemed to say that the appellate court should defer to the district court under an abuse of discretion standard if the district court judge came close enough to getting the law right. Let's see if the standard enunciated today can be distinguished from the Prop. 209 case. And of course, the ideological interests here are precisely reversed.
Thanks to Sam Bagenstos for reminding me of this language in the Prop. 209 case.

posted by Rick 7:36 AM
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Karlan and Kmiec talk about recall lawsuit Details here at "How Appealing."

posted by Rick 7:27 AM
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Monday, September 22, 2003
"Courts Take On Too Many Political Issues" Law.com's Tony Mauro offers this oped in tomorrow's USA Today. The oped echoes some themes from my Los Angeles Times oped, an oped that got a bit lost in the shuffle (coming out hours before the Ninth Circuit's original punch card ruling).

posted by Rick 10:04 PM
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Solum on claim preclusion in the recall punchcard case Don't miss Larry's informative post here.

posted by Rick 9:57 PM
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"Bustamante loses campaign finance ruling" The New York Times offers this report. The Los Angeles Times offers this report, which explains why the holding likely won't mean much---Bustamante has already spent the money and apparently won't need to return that which has been spent.

posted by Rick 9:56 PM
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News reports and analysis of the en banc argument today The New York Times (and here); The Los Angeles Times; The Sacramento Bee; A.P.; The Washington Post; The Recorder.

posted by Rick 9:50 PM
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Breaking News: Ninth Circuit ruling to be issued tomorrow morning Details at How Appealing.

posted by Rick 7:29 PM
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My initial reactions to the oral argument [Disclosure: I filed a brief supporting the ACLU's position in this case.] Going into oral argument, I was convinced that this panel, made up of many conservative judges, would likely reverse the three judge panel's decision and affirm the district court. I was also concerned that along the way the judges would issue an opinion that would be a blow for voting rights, reading Bush v. Gore and the Voting Rights Act in ways that minimized the chances other courts could use those sources to achieve more substantial equality in the means by which votes are collected and counted.

After watching the oral argument, I remain convinced that this panel is likely to reverse, but I now believe that the court's opinion or opinions likely will not endanger the broader voting rights project (my main concern in filing the amicus briefs in this case). Most of the salvos from the judges hostile to the ACLU's position went to the question of the abuse of discretion standard, rather than to the merits of the Bush v. Gore equal protection claim or the claim under section 2 of the Voting Rights Act. I think the most likely scenario is for the court to issue a quick short opinion holding that the district court judge did not abuse his discretion---he got the law close enough (even if he did not get it right), and in any event the balance of hardships favor allowing the recall vote to go forward.

What is much less clear is what the court will do with the inclusion of Propositions 53 and 54 on the ballot. It would be ironic if the court says, in effect, that punch cards are good enough to choose the governor but not to vote on these ballot measures (thanks to Richard Antognini for making this point via email), but the interests of the state in a quick election are certainly different---and much lower for the propositions. And it should be remembered that the ACLU has been neutral on the recall but opposed to Proposition 54, so such a "split the baby" ruling would be somewhat of a victory for them---though it still allows an election to go forward where we know in advance that there will be systematic geographical disparities in the way votes are counted.

One interesting question is how the court could get there. If the court says that under the abuse of discretion standard, Judge Wilson's order was "close enough," then that logic would seem to apply to both the recall and the propositions. It would be more likely for the court to reach this under a "balance of the hardships" approach, but there was not much discussion of the balance of the hardships at the hearing.

The other interesting question was how much play the Voting Rights Act claim got before the panel, particularly before Judge Kozinski, who also (despite his earlier flippant remark that the case was good for one day only in Sorchini v. City of Covina, 250 F.3d 706, 709 n.2 (9th Cir. 2001)) seemed to take Bush v. Gore's equal protection claim seriously. I very much hope he will write (perhaps separately) to explain on the merits how selective use of punch card voting raises both equal protection and Voting Rights Act concerns. Kozinski had written a very interesting concurring and dissenting opinion in Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990). He understands section 2 of the Voting Rights Act and referred to Garza and other applicable precedent during the argument today.

I think it is fairly likely that the court will issue an order soon, with a judgment and an announcement that opinions will come soon. That would be a way to get the election going again or continue the case up to the Supreme Court if any of the parties file further appeals, and eventually we will get the benefit of the court's reasoning.

posted by Rick 4:56 PM
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Others' reactions to the oral argument---mine soon! I was teaching and I'm now watching the video. I'll be posting my thoughts soon. In the meantime, you can access Dan Lowenstein's first reactions here and Fred Woocher's comments here. I also received the following e-mail from Richard Antognini:
    After watching the oral argument, I am less sure that the en banc panel will overturn the original panel decision. Kozinski, in particular, seems worried about the Voting Rights Act claim, which surprises me. He also disagreed with the State of California on the standard of review. And, it looks like few judges on the panel are willing to tolerate the disparity between punch card voting machines and more modern technology. The Ninth Circuit may find either an equal protection or Voting Rights Act violation, but may let the recall election proceed because the balance of hardships does not favor the plaintiffs. Its rationale is that, if the recall results are close enough, the plaintiffs can challenge the results later. That would be a strange line of reasoning, as Bush v. Gore taught us it is very difficult, and highly controversial, to undo the results of an election. What the Court really hopes for is a election where the margin is not close, so no one has to worry about discarded ballots, overvotes, and other problems. We will see.

My thoughts soon.

posted by Rick 3:37 PM
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Why the Supreme Court should decide contested equality cases using murky (or "judicially unmanageable") standards The election law listserv has been continuing its interesting discussion (first explained and responded to here) about how best to read Bush v. Gore. In my earlier post, I defended the use of murky standards in cases where the Supreme Court creates a new equal protection right that does not flow from social consensus or a core view of political equality. Here is my latest post to the list:
    Let me respond to Dan's question first, because it will help answer Bob's questions too. My list of cases (Reynolds, Shaw, Bush v. Gore) was not a list of cases in which I said the court DID set murky standards. It was a list of cases where, if the court was going to create a new equal protection standard out of whole cloth, it SHOULD use murky standards.

    My work criticizes Reynolds precisely for not moving slowly through the political thicket by examining various ways of implementing more equipopulous voting standards. I think the country would have benefited from a period in which Stewart's exceptionally mushy standard had been put in place. Then lower courts could have taken various strategies in trying to operationalize the new standard, and the court would have much more information, and a better menu to choose from, in crafting either a strict or a more flexible one person, one vote rule.
    Had the Court done so, I argue, we would not have ended up with cases like Avery, applying one person, one vote on the local level, thereby (as Richard Briffault and Bruce Cain have ably shown) thwarted the ability to form effective regional governments.

    This is not to say that the Court in Reynolds, Shaw, and Bush v. Gore was RIGHT to create the new equal protection standard. That is a difficult question, and one that I tackle in another chapter with reference primarily to social consensus but also to a core of certain political equality rights that do not depend upon social consensus. But once the Court, for good or for ill, goes down the road of creating a new contested political equality right, it should do so with murky standards.

    The appropriate role for the lower courts (and now this is more directly responsive to Bob) is to try out the new standard in various ways, bringing in policy and facts in particular factual contexts that would not necessarily have been apparent to the Supreme Court at the time it creates the new right. After a period of lower court experimentation, the Court can then judge how best to operationalize the new right.

    I should note that I do NOT believe the Court in cases like Bush or Shaw PURPOSELY chose a murky standard for these reasons. But I do believe the murky standards in such cases can serve salutary purposes.

posted by Rick 10:18 AM
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Costa to get 10 minutes of argument time today On Saturday, the Ninth Circuit issued an order (it is not yet up on their website) giving Costa 10 minutes of time, and the secretary of state 20 minutes of time.

posted by Rick 9:29 AM
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"The Supreme Court's Extraordinary Campaign Finance Reform Oral Argument" Michael Dorf offers these thoughts on Findlaw.com.

posted by Rick 7:21 AM
. . .
"Campaign Reform Boomerang" Thomas Edsall reviews two recent campaign finance books here.

posted by Rick 7:20 AM
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"THE RECALL CAMPAIGN; Various Legal, Political Factors Can Sway Court*Public opinion and ideology play roles as judges decide a case. Many observers think 9th Circuit will restore Oct. 7 as election date." The Los Angeles Times offers this report.

posted by Rick 7:18 AM
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Sunday, September 21, 2003
Back home and getting up to speed on the en banc hearing tomorrow Unfortunately I won't be able to attend the hearing, but will be listening to it on C-SPAN. Howard Bashman offers this useful recap of what we know about tomorrow's en banc proceedings (including a link to C-SPAN).

posted by Rick 11:22 PM
. . .
Saturday, September 20, 2003
The meaning of Bush v. Gore and its application to the recall decision There's a very interesting thread now on the election law listserv, beginning with Rick Pildes's post including the following question:

    Bush v. Gore can be read as either a substantive equal protection decision that requires equal statewide
    outcomes in the effective weight given each vote or as a procedural decision that requires vote counting rules specified ex ante and objectively enough to reduce the risk of partisan manipulation of the counting process to a tolerable level.

Further discussion has focused both on what the Supreme Court meant and which rule would be a better rule if one were choosing one.
But I'd take issue with Rick's definition of the substantive point. I do read the opinion as a substantive decision, but not one that requires "equal statewide outcomes in the effective weight given to each vote." Rather, in my view, the best read of the substantive standard in Bush is one that prevents the state from allowing systematic disparities in the nuts and bolts of election administration that deprives an identifiable group of people of the same chance to have their votes counted. Thus, assuming punch cards have a much greater error rate than other voting systems in the state, it is an equal protection violation to use such a system in some parts of the state but not others---but it would not be an equal protection violation to use punch cards throughout the entire state. I develop my argument for this interpretation in my FSU article, which depends in part upon the Bush v. Gore Court's reliance on the 1960s voting rights cases (such as Reynolds and Harper), as well as the flat holding early in the Bush opinion that it is unconstitutional to value one person's vote over that of another.
No doubt, this language is exceptionally murky, and there are indeed other ways to read the opinion. As Dan Lowenstein's post points out, those who disagree with these interpretations point to limiting language in the opinion itself, language which I think the Supreme Court majority put there precisely so that it could limit the Bush holding in a subsequent case. (Indeed, I predict in the FSU article that the Supreme Court will ultimately limit Bush to its facts, but that in the meantime the lower courts should be applying the holding as though the Court were not writing a one day only ticket.)
I also believe that one of the best things one can say about Bush v. Gore is that it is a murky opinion. In earlier articles (sorry, I don't have citations with me) Issacharoff and Dorf called the Bush holding "perfectly opaque." Overton noted the lack of "judicially manageable standards" in the opinion. As I explain in detail in my book, when the Supreme Court creates a wholly new equal protection standard that does not stem from broad social consensus (as it has in cases like Reynolds, Shaw v. Reno, and Bush v. Gore), it should do so initially using a murky standard. That allows lower courts to experiment with the contours of the new equal protection right allowing the Supreme Court to gain valuable information about how to ultimately shape the new right. That is how to read the current dispute over Bush v. Gore. This is entirely a good thing.
How much do we want courts interfering in the nuts and bolts of elections to insure that there is no systematic inequality that can affect electoral outcomes? No one seemed to object when I argued in my FSU piece that non-uniform use of punch cards violated Bush v. Gore, or when the Black v. McGuffage district court so held in the Illinois litigation over punch card votes. Maybe the reason is that no one was paying attention earlier. I actually think that some of the reason is that the argument is generally unobjectionable---what good reason does the state have for selective use of punch cards? If it is a resource allocation decision, I am fairly comfortable saying that this is one decision that should not be left to localities. The better reason for objecting now in the recall context is not that Bush v. Gore is being unfairly stretched, but that the balance of the equities favors using the system in this election, because there is no time to do anything else. I disagree with that assessment, but I think that is much more defensible than arguing that it would be okay for California or any other state to indefinitely permit a voting rule that systematically undercounted the votes of Los Angeles residents and others. It will be a shame if the outcome of the en banc decision is to stall voting reform across the country.

posted by Rick 11:23 AM
. . .
Friday, September 19, 2003
Ted Costa wants time at the oral argument To the extent oral argument matters here, it will be interesting to see whether the court grants Costa any time. (See here on Costa's request.) At the three judge panel oral argument, Costa was the only one who argued the equal protection claim on the merits, with the state sticking only to res judicata and balance of the hardships. The latter was the sole focus of the state's en banc request as well. Bush v. Gore was not even cited.

posted by Rick 9:12 PM
. . .
The recall, Bush v. Gore, and Miguel Estrada What do these three topics have in common? The connection between the first to is obvious to readers of this blog, but what about the third? Miguel Estrada, of course, is a Washington lawyer who recently withdrew his nomination for a judgeship on the United States Court of Appeals for the D.C. Circuit. He did so in the face of a relentless filibuster by Democrats. Some of those who opposed the filibuster said that it was unfair, and among those who said that, some argued that the ideology of the judge should be irrelevant to the decision whether or not to confirm the judge---the only question should be one of judicial competence, at least on the Court of Appeals.
The recall litigation in the Ninth Circuit should end any serious discussion of the irrelevance of ideology to the confirmation process. How is it that most knowlelgeable observers were able to handicap the chances that the three judge panel would reverse the district court in the punch card recall suit? How is it that knowledgeable observers now predict that the three judge court decision will be overturned? Those knowledgeable observers know the ideological leanings of the appellate judges and therefore can extrapolate about how sympathetic these judges are likely to be to the equal protection claims of voters using punch cards, compared to state interests in a speedy recall election. Of course ideology matters, and of course it should be relevant in confirmation decisions of intermediate appellate court judges.

posted by Rick 8:58 PM
. . .
God save Howard Bashman? In the post immediately below this one, I invited everyone to visit the How Appealing website. But because of one transposition of letters (change "blogspot" to "blogpsot"), I took readers to a bible site. For some of you that may be more appealing than How Appealing. But for most of you, click here for appellate enlightenment.

posted by Rick 8:51 PM
. . .
Getting en banc news at the top of the Empire State Building Still out of general blogging range, but a quick note to point everyone to How Appealing for updates on the en banc grant and to agree with Howard that this panel draw is undoubtedly good news for those who want a reversal of the three judge panel.

posted by Rick 2:23 PM
. . .
Thursday, September 18, 2003
A good day to travel to NYC We beat the hurricane and the Ninth Circuit's decision whether to take the case en banc. Howard links to articles saying the decision will come on Friday, and suggests that a delay might be a sign of a dissent of a denial of an en banc consideration. Maybe so, or maybe the judges knew they wanted another day to hash this out in the internal memos that frequently precede an online vote. Blogging will remain light, but if you want some Q&A with me, L.A. Citybeat offers it here.

posted by Rick 8:56 PM
. . .
Wednesday, September 17, 2003
Blogging will be sporadic until Monday I'll do my best to keep up while at a conference. In the meantime, your best source for recall litigation news is How Appealing.

posted by Rick 5:38 PM
. . .
No order from Ninth Circuit today I understand that the Ninth Circuit will not be issuing an order today on whether or not the case will be taken en banc. I predict we will hear something by noon tomorrow (pacific time), when I'll be on a plane to New York.

posted by Rick 3:59 PM
. . .
What have I been doing instead of blogging today? Here is a link to an amicus letter I have sent to the Ninth Circuit opposing en banc review in the punch card case. You can access today's other filings today here, in the top left corner.

posted by Rick 3:57 PM
. . .
Recall legal issue roundup The Wall Street Journal offers "California Ruling on Recall Delay Opened for Review" and this oped by Einer Elhauge. (Thanks to Steven Sholk for the pointers.) Bruce Ackerman offers this oped in today's New York Times to which Mickey Kaus adds these thoughts. The Los Angeles Times offers "Supreme Court May Pass on This One" and this editorial. Copley News Services offers "Campaigns Keep Rolling as Court Ponders Review. The Contra Costa Times offers "Court that Postponed Recall Seeks Reasons to Reconsider." The Boston Globe offers "Full Panel May Review California Recall Ballot." Dan Weintraub offers these thoughts on why Supreme Court reversal could help Davis and the Democrats. The Sacramento Bee offers "Recall Halt May Get Review." Here is a link to my debate with John Eastman on NPR's Day to Day yesterday. And here is Warren Olney's "To the Point," which I believe featured Dan Lowenstein and Erwin Chemerinsky.

posted by Rick 7:30 AM
. . .
Tuesday, September 16, 2003
More recall litigation-related articles The Boston Globe; the Christian Science Monitor (see also this article about court involvement in the electoral process and this editorial.); A.P. (and this report); Washington Post.

posted by Rick 8:55 PM
. . .
More on en banc question In the post five below this one I asked, who will be on the en banc court. Many of you have written in on that question. It turns out that we apparently do not have enough information to answer the question. We do not yet know the identity of the members of the en banc panel for a case taken Sept. 3, key to figuring out who might automatically appear pursuant to the court's rules.

posted by Rick 8:51 PM
. . .
"California Moves to Appeal Delay of Vote on Recall" The New York Times offers this report. The article states that I had said that the request of a single judge would be enough for a new en banc hearing. What I thought I said (or meant to say) was that the request of a single judge would be enough to hold a vote on whether to have an en banc hearing. UPDATE The article was corrected, changing "would" to "could."

posted by Rick 8:47 PM
. . .
More orders on the 9th Circuit website Accessible here you will find a Ninth Circuit order recusing Judges Reinhardt and Wardlaw from voting the in ACLU recall case; an order accepting for filing my amicus brief and the MALDEF amicus brief; and this electronic copy of my amicus brief.

posted by Rick 4:38 PM
. . .
Erwin Chemerinsky oped on the recall decision It is available here.

posted by Rick 2:51 PM
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Secretary of State cancels news conference regarding whether he will file a request to overturn the punchcard case in the Supreme Court Instead he issued this press release:
    Secretary Shelley to File Brief in Response to Ninth Circuit Order

    SACRAMENTO -- Secretary of State Kevin Shelley released the following statement in response to today’s request by the Ninth U.S. Circuit Court of Appeals for briefs from the parties in Southwest Voter Registration Education Project et al v. Shelley:

    “I am immediately complying with the order from the Ninth Circuit for briefs on whether or not this case should be reheard en banc.

    “I believe it is in everyone’s best interest that this case be heard swiftly and considered thoroughly, so the court can resolve these legal issues with the finality that the voters expect and deserve.”

    The brief will be filed by Wednesday, September 17th at 2:00 p.m.

So it looks like the secretary has put off the decision whether to file in the Supreme Court. Of course, intervenor (and recall proponent) Ted Costa may announce soon his own plans on whether to file a brief in the Supreme Court.

posted by Rick 2:32 PM
. . .
Who will be on the en banc court? Although it is generally a random draw, someone has pointed out the following to me from Circuit Rule 35-3: " Notwithstanding the provision herein for random drawing of names by lot, if a judge is not drawn on any of three successive en banc courts, that judge's name shall be placed automatically on the next en banc court. " Anyone know who these judges are?

posted by Rick 1:04 PM
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"Editorial: Ounce of prevention; Court decision assures a fair recall election" The Sacramento Bee offers this editorial.

posted by Rick 12:33 PM
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"Editorial: As the Recall Election Turns" See this Ventura County Star editorial. (Thanks to David Ettinger for the pointer.)

posted by Rick 12:12 PM
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"Court Faces Stark Choice on McCain-Feingold" Tom Mann offers these thoughts on the BCRA oral argument.

posted by Rick 12:10 PM
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"The Return of Bush v. Gore" Professor Jack Balkin's thoughts are here.

posted by Rick 11:47 AM
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BREAKING RECALL LITIGATION NEWS The Ninth Circuit has asked the parties to brief whether or not the ACLU punch card case could be taken en banc. The briefs are due by 2 pm tomorrow. How did this happen, if the parties have not yet filed a request for an en banc hearing? Any active, non-recused judge can call for a vote to take the case en banc. If it is taken en banc, it will be heard by a panel of 11 judges. (See here and scroll down to FRAP 35 and the relevant circuit rules on en banc procedures.)

I do not believe that the en banc activity will prevent either the state, or Costa, or both, from petitioning for a writ of certiorari and a stay. It is possible that the en banc action will cause the Supreme Court justices to wait a bit before ruling. In the BCRA case, for example, a party sought a stay of part of the BCRA from Chief Justice Rehnquist before the lower court had ruled on a stay request. The Chief Justice denied the motion without prejudice, and said it could be refiled within a week if the lower court denied the stay.
UPDATE: Here is the text of the order: "Before: Thomas, En Banc Coordinator:
The parties, including the intervenor, shall file simultaneous briefs, not to exceed 15 pages, or 7,000 words, setting forth their views on whether or not this case should be reheard en banc. The briefs shall be filed with the Clerk no later than Wednesday, September 17, at 2:00pm P.D.T. The briefs may be filed in letter format and shall be sent to the Court electronically. Issuance of the mandate will be stayed pending further order of this Court."

posted by Rick 11:41 AM
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"Shelley to Announce Recall Decision" The Los Angeles Times offers this update.

posted by Rick 11:26 AM
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Am I being inconsistent in my views on the recall and BCRA? A regular reader of this blog writes:
    I read your characteristically thoughtful op-ed in the L.A. Times today and am in general agreement that the Supreme Court, and the federal courts generally, should exercise due restraint when it comes to election law matters, although I don't agree that the Court should uphold BCRA to this end. (Indeed, I think BCRA violates the Constitution's guarantees of free speech and association, and represents a threat to liberty the Court would not tolerate in other contexts, such as the nude-dancing, sign-wearing, pamphleteering or flag-burning contexts, for instance. But that is neither here nor there.)

    You filed an amicus brief urging the Ninth Circuit to do precisely what it did today -- to wit, it enjoined the Secretary of State "from conducting an election on any issue on October 7, 2003." Reasonable minds, it seems to me, can differ about the merits of the equal protection argument the court found meritorious, just as (I believe) reasonable minds can disagree about the propriety and constitutionality of BCRA. (Having attended last Monday's argument, and watched as nine reasonable men and women split precisely down the middle on this subject, I would think the foregoing assertion would be unassailable.). I wonder whether you could comment on how one squares today's result in the Ninth Circuit with your notion of judicial restraint in election matters. I suspect that your explanation, whatever it may be, applies in full force in the BCRA context as well. Moreover, your op-ed chastised the Bush v. Gore majority (rightly, in my view) for its lack of restraint. Should today's decision be excoriated for the same reason? Certainly it will be by those on the Right, who will (I wager) see no hypocrisy in their position after having supported the result in Bush. It is not the least bit ironic that the Ninth Circuit explicitly relied on Bush in reaching today's result, as the circumstances are parallel in several respects. But I wonder how one justifies support for the one and contempt for the other? Are they not of a piece, as your op-ed would (at least implicitly) suggest? Just my two pence.

Thanks very much for your thoughts. I was waiting for someone to ask me this question. The arguments set forward in the oped are a very truncated version of the argument in my book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore. (The book is officially out 11/1, but it will ship at the end of the month and can be pre-ordered now from Amazon and Barnes and Noble.)

The difference between the two cases is simply the role of the Supreme Court and the lower courts. As I have written both in the book and in my earlier FSU piece, the Supreme Court's equal protection holding is sufficiently murky that lower courts may vary on how they handle it. In the book I praise the Supreme Court for issuing a murky opinion. (The court was wrong to take the case, and it was wrong on the remedy, I argue, but once it took the case, it was right to use a murky standard). The murky (or "judicially unmanageable") standard allows for lower courts to provide valuable information to the Supreme Court about the scope of new equal protection rights that it has crafted. The Supreme Court can learn from this experimentation and decide the best contours of the new equal protection right. Thus, the Supreme Court and lower courts have different roles to play.

(I argue that the Court should not use murky standards in some other cases, such as where it protects what I call "core" equality rights. My example here is the Harper case invalidating the poll tax, and I have a long explanation in the book how to distinguish core rights from contested equality rights.)

I further argue that the Bush v. Gore opinion provides a window of opportunity for lower courts to experiment with how far courts should delve into assuring equality in the "nuts-and-bolts" of elections. My view is that the courts may go quite far, but I don't see the punch card issue as a difficult one. Indeed, in my FSU article, it was my first hypothetical intended to be an easy case. As I have said, if the Bush v. Gore precedent applies anywhere, it applies to the punch card case.

posted by Rick 10:46 AM
. . .
Delay of the recall providing partisan advantage? Many people, including Professor John Eastman, who debated me this morning on NPR, say that the recall decision was issued for partisan reasons, i.e., to help the Democrats. This Los Angeles Times story sets out the conventional wisdom on why delay helps Davis. But this may not be so. A number of people have commented to me that the momentum against the recall was building, and that Davis was poised to win. See also this oped by Tony Quinn, suggesting Republicans will benefit from more time.

posted by Rick 10:34 AM
. . .
"California Recall Delay Highlights Nation's Outmoded Voting Systems" The Wall Street Journal offers this report. (See also this editorial.) Thanks to Steve Sholk for the pointer.

posted by Rick 9:51 AM
. . .
Solum on res judicata argument in the recall case Don't miss this very thoughtful post.

posted by Rick 6:25 AM
. . .
Opinion pieces The Los Angeles Times offers "Making a Bad Recall Worse" and Richard Riordan's oped against the recall decision. (I saw Riordan at oral argument and was told by some reporters that he was bankrolling Ted Costa's lawyers opposing the ACLU case.)

posted by Rick 6:04 AM
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"Case Has Echoes of Bush v. Gore" The San Jose Mercury News offers this report.

posted by Rick 5:58 AM
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"California Told to Postpone Recall" The Washington Times offers this report.

posted by Rick 5:54 AM
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"Campaign Finance Reform Myths" Bruce Fein offers this oped.

posted by Rick 5:53 AM
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"Enthusaism Wanes for Election Changes; Bush, Hill Slow on Commission" The Washington Post offers this report.

posted by Rick 5:52 AM
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Monday, September 15, 2003
On NPR's Day to Day tomorrow morning. Talking about the recall decision.

posted by Rick 10:26 PM
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"Fear of chads delays recall" UPI offers this report.

posted by Rick 10:21 PM
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"Absentee voters urged to keep casting ballots" The Contra Costa Times offers this report.

posted by Rick 10:20 PM
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McCain May Block Appointment of Member of FEC The Hill has this report.

posted by Rick 10:19 PM
. . .
Something to criticize in the recall decision On page 34, the opinion reads: "The first criteria for our consideration...." That makes me cringe.

posted by Rick 10:17 PM
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"Calif. Ruling Hangs on Chad of Bush v. Gore" USA Today offers this story.

posted by Rick 9:40 PM
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"9th Circuit Slams the Brakes on Recall" The Recorder offers this report.

posted by Rick 8:51 PM
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"One More Round for Bush v. Gore" The Washington Post offers this analysis of the punch card suit legal issues.

posted by Rick 8:46 PM
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"Bush v. Gore Outlives Its Limited Warranty for Use in California" The New York Times offers this analysis of the punch card suit legal issues.

posted by Rick 8:44 PM
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Punch card stories the Los Angeles Times; San Francisco Chronicle; NPR; A.P. (more to come)

posted by Rick 7:53 PM
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The other Ninth Circuit opinion today The Ninth Circuit also struck down the blanket primary in Washington today. Things have been so busy, I have not yet had time to even read the opinion. The Seattle Times coverage is here (link via the indispensable and unparalleled source for all appellate-related news.)

posted by Rick 7:46 PM
. . .
"Why Did California Adopt the Recall?" Joshua Spivak offers this historical analysis.

posted by Rick 7:44 PM
. . .
Thoughts from Professor Abner Greene He sends along the following via e-mail:
    As you may know, NYU Press published my book "Understanding the 2000 Election:
    A Guide to the Legal Battles that Decided the Presidency." Most of the book is a nonpartisan explanation of the legal events of the Florida phase. But I do offer some analysis, and one piece of analysis is a critique of the equal protection rationale for Bush v. Gore, while offering a narrower, first amendment rationale for the merits (not remedy) outcome.

    The argument is that we should follow the line of speech/press cases that invalidate statutory grants of subjective discretion to political officials to pass on citizens' speech/press petitions for licenses, permits, etc. The concern is the risk that such discretion will be used to help friends, hurt enemies. Applying this reasoning to the Florida statutory scheme for vote counting is fairly straightforward, for unlike (say) Texas, the Florida statute delegated to each county the power to determine what counts as voter intent. Granted the line of cases I use is in the speech/press area, but the logic easily extends to all political rights.

    This line of argument (a) supports the merits outcome in Bush v. Gore but (b) narrows it considerably. On my line of reasoning, the ninth circuit is wrong in the California recall case, because the problem of votes being counted differently, or with different error rate, is no longer the point.

posted by Rick 7:42 PM
. . .
Preliminary thoughts on the ACLU punch card decision by the Ninth Circuit [Disclosure: I filed an amicus brief on my own behalf supporting the ACLU in this case.]

1. Were the judges right to enjoin the recall? When the recall litigation started, I was very skeptical of most claims that were being brought to delay or change the rules for the recall. (For example, see here.) I said here back on August 1 that the punch card suit was the case to watch because the issue presented is so strong.
The argument is simply that the use of punch card votes---with their concededly much higher error rates--- in some counties but not others in a statewide election violates the equal protection clause. This is a straightforward application of Bush v. Gore. Indeed, back in 2001 I wrote this article about what Bush v. Gore's equal protection holding would mean if we took the case seriously, and I set out a series of hypotheticals. The punch card case was the easy case, my first hypothetical. If it violates equal protection to use non-uniform voting standards for recounting votes in a statewide election , if that "values one person's vote over another" in violation of the Equal Protection Clause as Bush says, then it must be an equal protection violation to use different machines with different error rates in the same election. This creates a systematic geographical disparity---if you live in Los Angeles or another county using punch cards, your chances of casting a ballot that will be counted is much lower than your chances from another county. The state knows it, and it could have prevented it from happening. If Bush v. Gore does not apply here, it applies nowhere and the opinion, as many of its detractors claim, has no precedential value.

2. What is noteworthy about the Ninth Circuit opinion? It applies Bush v. Gore in a straightforward manner. It hold that the state's claim fails even under rational basis review. This surprised me somewhat; my brief argues that strict scrutiny should apply and that under that standard, the use of punch cards fail. Another notable point is that the court did not even reach the Voting Rights Act issues, which potentially would have been a less controversial way to decide the case---without directly implicating Bush v. Gore. Finally, the opinion does not set a March date for a recall. It enjoins the October 7 election and lets the district court sort out whether the state can run an election without punch cards on a quicker schedule.

3. What is likely to happen next? The losing parties (the Secretary of State and recall intervenor Ted Costa) can petition the entire Ninth Circuit to hear the case en banc by a panel of 11 judges chosen at random or the parties can go to the Supreme Court, first to Justice O'Connor (the Circuit's Justice) for a stay. Justice O'Connor is currently out of the country. She likely would forward the request to the entire Supreme Court. Would either group be interested in the case? If either takes the case (and as Fred Woocher pointed out to me, any judge on the Ninth Circuit can call for an en banc vote even if the parties don't ask for it), it will be a good sign that a reversal is coming. But I think there is a reasonable chance that neither will want to take the case--especially the Supreme Court, which, having been criticized severely for intervening in the 2000 presidential election may not want to intervene again now when the stakes are, thankfully, much lower. We have no national election on the line, no potential transition crisis. Remember, the Court did not get involved after the New Jersey Supreme Court decided to allow Democrats to replace Sen. Torricelli on the ballot. that case too, raised a Bush v. Gore issue, albeit a different one (the right of the legislature, rather than the state courts, to determine the rules for federal elections). Note, there are also some interesting standing questions about who can appeal to the Supreme Court---expect these issues to arise as this continues.

4. What happens if this ruling stands? Will absentee ballots sent out be destroyed? Will the time for candidates to file be reopened? I have not explored these issues yet but certainly there will be much talk of them in the coming days.

posted by Rick 4:43 PM
. . .
If you have been trying to reach me I have had more than 50 press calls and my e-mail went down. So sorry if I have not responded. Please send any copies of e-mail to me to my backup address, hasenr-at-netscape.net.

posted by Rick 4:20 PM
. . .
I hope to post something soon with my analysis of the opinion Stay tuned. UPDATE: I've been on with the press for the last two and a half hours, then I'm off to teach. I will post some analysis late this afternoon.

posted by Rick 11:23 AM
. . .
BREAKING RECALL LAWSUIT NEWS The Ninth Circuit clerk's office just called to tell me that it has reversed the district court on enjoining the election because of the use of punch cards. More details when I get them.....UPDATE: The opinion here here.

posted by Rick 10:20 AM
. . .
Statistics on punch cards and the Ninth Circuit Professor Mike Masinter writes:
    I was surprised that you were surprised that judges might be doing their own tests of statistical significance. (See here.) The Supreme Court (or more likely, various law clerks) took judicial notice of tests for statistical significance, did their own math, and came to dueling conclusions in Hazelwood School District v. United States, relying on Casteneda v. Partida. Whether the Court was wise is a fair question (I think not; its casual announcement that two or three standard deviations are sufficient to show statistical significance suggests that it does not understand that in the vast majority of cases in which an observed outcome is at least two standard deviations from an expected result, the disparity will be less than three standard deviations from the expected result).

posted by Rick 9:50 AM
. . .
"Campaign Finance Reform: What the Court Should Do" Stuart Taylor offers these thoughts at National Journal.

posted by Rick 7:15 AM
. . .
Will 9th Circuit rule today in ACLU punchcard suit? I would guess we would see a ruling today or tomorrow, given the need for resolution of this matter as quickly as possible, and the weekend period which would have allowed the judges to draft an opinion (or opinions). [Disclosure: I filed a brief supporting the ACLU in this case.]

posted by Rick 6:09 AM
. . .
"Some High Court Modesty is in Order" This is the title of my oped in today's Los Angeles Times. It begins:
    At the Supreme Court a week ago, during oral arguments in the McCain-Feingold campaign finance case, I was hanging on every word uttered by Chief Justice William Rehnquist and Justice Sandra Day O'Connor. They are widely believed to be the swing justices on a court that is divided on the constitutionality of the campaign finance law's provisions regulating "soft money" and issue advocacy.

    Depending on how these justices vote, we could soon enter an era of deregulated campaign finance spending in which corporations and unions can spend unlimited sums on advertising that supports or opposes candidates for office, and corporations, unions and wealthy individuals can effectively give any amount to political parties to bankroll campaigns. Then again, they could vote to allow Congress, via McCain-Feingold, to close loopholes in the existing system and create stronger controls on the campaign finance system than we have seen in a generation.

    How did it come to pass that a couple of justices can have so much control over the regulation of U.S. politics? After all, the detailed ins and outs of how to run elections simply aren't addressed in the Constitution. But court intervention in this area is hardly novel. Since the 1960s, the court has shown no inclination to stay out of politics.

posted by Rick 6:03 AM
. . .
"Controversial 9th Circuit to Judge Recall" The Washington Times offers this report.

posted by Rick 5:59 AM
. . .
"Democratic Senate Majority Fund Slows Activity As Group Awaits Decision in BCRA Court Case" Roll Call offers this report (paid registration required).

posted by Rick 5:57 AM
. . .
"Buying a High-Priced Upgrade on the Political Back-Scratching Circuit" Adam Cohen has this McCain-Feingold-related oped.

posted by Rick 5:52 AM
. . .
Sunday, September 14, 2003
McCain-Feingold news and commentary See this Virginian-Pilot editorial; A.P's "McCain-Feingold Provision Could Help Feingold Next Year;" this oped by Lance Olson and Chuck Bell (lawyers for the California parties in the lawsuit); this oped by Robin Blumner; this oped by Valle Simms Dutcher; this editorial in the Atlanta Journal-Constitution; and this oped by Walter Mondale.

posted by Rick 8:36 PM
. . .
"Vote Boils Down to---Where's Waldo?" Tony Quinn offers these recall-related thoughts. On a similar note, see this Condorblog post.

posted by Rick 8:29 PM
. . .
Saturday, September 13, 2003
More on faxing ballots in the recall--can the next lawsuit be far behind? See this Contra Costa Times report. See also this San Jose Mercury News report.

posted by Rick 7:51 AM
. . .
Friday, September 12, 2003
McCain-Feingold symposium in University of Pennsylvania Journal of Constitutional Law The symposium in Volume 6, Number 1 of the journal is online here and features contributions (in the order of appearance) by: Nate Persily, Richard Briffault, Trevor Potter, Bob Bauer, Burt Neuborne, Dan Ortiz, Spencer Overton, and Robin Kolodny. The same issue also features an article by William McGeveran (accessible here) on the right to engage in anonymous campaign speech.

posted by Rick 9:01 PM
. . .
Texas Re-Redistricting Suit Dismissed Details at How Appealing. The order itself has been posted here.

posted by Rick 2:04 PM
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"Doria ruling sets primaries apart from campaign finance law" See this N.J.com report, with important campaign finance news out of New Jersey. (Thanks to Ed Feigenbaum for the pointer.)

posted by Rick 2:02 PM
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"Legality of Faxing Ballots Adds to Confusion" The Contra Costa Times files this report, which begins:
    Secretary of State Kevin Shelley scrambled Thursday to determine the legality of overseas troops casting recall ballots by fax -- even as some counties allowed the unusual practice.

    Registrars from three counties confirmed to the Times that some of their colleagues said during a conference call Wednesday they were permitting such voting.

posted by Rick 1:10 PM
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All dressed up and no place to go My segment on O'Rielly has been cancelled (they are not dealing with the issue on today's show). That's three times this week I've had to wear a tie, which is three times more than I usually do in a typical week.

posted by Rick 11:22 AM
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"Blogging the Recall" Washingtonpost.com offers this report.

posted by Rick 8:17 AM
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"State Senate Democrats Return to Texas" The latest in the redistricting saga from this New York Times article.

posted by Rick 7:23 AM
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More punchcard stories The San Francisco Chronicle; the Contra Costa Times; the Sacramento Bee; FOXNews. (I'm supposed to appear on Fox on the O'Rielly Factor tonight talking about the recall suit.)

posted by Rick 7:21 AM
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Thursday, September 11, 2003
"Judges Fear Calif. Poll Problems" See this Washington Post report.

posted by Rick 10:00 PM
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"Fed. Panel Hears Texas Redistricting Case" A.P. offers this report.

posted by Rick 9:57 PM
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"Dean Weighs Flip-Flop on Spending" MSNBC offers this report.

posted by Rick 9:02 PM
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"9th Circuit May Put Brakes on Recall Election" The Recorder offers this report. See also this A.P. report.

posted by Rick 8:50 PM
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"Judges Grill State on Use of Punchcard Ballot" The Los Angeles Times offers this report.

posted by Rick 3:50 PM
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Reply to Foley article by Bob Bauer A little while back, the Election Law Journal offered a pre-publication web version of Professor Edward B. Foley's article, "'Narrow Tailoring' is Not the Opposite of 'Overbreadth:' Defending BCRA's Definition of 'Electioneering Communications.'" The article, which is relevant to the McCain-Feingold campaign finance case being decided by the Supreme Court, was cited in at least three of the briefs filed in the Court.
ELJ has now offered a pre-publication web version of attorney Robert F. Bauer's reply to Foley, "Undercutting Overbreadth: A Reply to Professor Foley." The Reply will appear in print in Volume 3, No. 1 (January 2004) of ELJ.

posted by Rick 3:44 PM
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Another election decision today, this one from the Third Circuit See Belitskus v. Pizzingrilli. This case involves the constitutionality of a candidate filing fee without an alternate means of ballot access for the indigent. (Thanks to How Appealing for the pointer.)

posted by Rick 3:39 PM
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Ninth Circuit decides campaign finance case In Montana Right to Life v. Eddleman, the Ninth Circuit, by a 2-1 vote, upheld two provisions in a Montana campaign finance initiative:
    The first lowers the maximum dollar amount both political action committees and individuals may contribute to a political candidate; the second limits theaggregate dollar amount a candidate may receive from all PACs combined.

    Plaintiffs-appellants brought suit to invalidate some of the measures in Initiative 118, claiming they unduly burdened protected speech and associational rights. After a four-day bench trial, the district court made numerous factual findings and struck down portions of Initiative 118 not at issue here. As to the two provisions challenged on appeal, the district judge upheld them as sufficiently tailored to achieving Montana’s important interest in preventing corruption and the appearance of corruption in Montana politics. We affirm. The district court’s factual findings are adequately supported by the record and are not clearly erroneous. Applying these facts to the analytical framework set forth in Buckley v. Valeo, 424 U.S. 1 (1976) and Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000), we agree that the two challenged provisions do not violate the First Amendment.

The dissenting judge wrote:
    Where I depart from the majority is on the constitutionality of the aggregate PAC contribution limit. I disagree that the State has demonstrated a “genuine threat to its important governmental interests” or has “employ[ed] means closely drawn to avoid unnecessary abridgment” of protected activity. Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 302 (1981) (Blackmun, & O’Connor, J.J., concurring) (internal quotation marks omitted).
    The Supreme Court has previously defined corruption as “a subversion of the political process” where “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985) (“NCPAC”). I agree that Montana has a significantly important interest in preventing corruption associated with large contributions. However, I submit that large individual contributions from persons and PACs have been addressed by Montana’s individual contribution limits as set forth in Mont. Code Ann. § 13-37-216 (2001). I find that having a limit on the amount an individual PAC may contribute to a candidate sufficiently prevents any one PAC from exerting “unfair influence” over a candidate. Nevertheless, the State has chosen to enact an aggregate PAC contribution limit to prevent a candidate from being overly influenced by special interests generally. The predicate for such a position must necessarily be that all PACs operate with a monolithic agenda. This ignores the obvious. Like individual persons, each PAC has its own interests and its own reasons for contributing. There is no evidence to support a proposition that all PACs exert unfair influence, or are collectively capable of doing so. I conclude that not only has the State failed to demonstrate a genuine threat, i.e., that all PAC contributions exert an unfair influence over candidates to justify the State’s interest in preventing perceived and actual corruption, but the State has also failed to employ means closely drawn to that interest.

posted by Rick 12:47 PM
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Listen to oral argument in punch card case? The Ninth Circuit has posted this link purportedly to the oral argument in the recall case. So far, it is not working.

posted by Rick 12:41 PM
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"A Congress in Reserve" Cal Thomas offers this commentary on the McCain-Feingold case.

posted by Rick 12:35 PM
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"No Clear Victors Emerge" Roll Call offers this post-BCRA argument roundup (registration required).

posted by Rick 12:33 PM
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Sitting next to Bob Bauer Here's a small item from Roll Call's "Heard on the Hill" column:

    Reform War. In a sign of just how testy some insiders are getting as they await the fate of the McCain-Feingold reform law, Rep. Marty Meehan (D-Mass.) is taking aim at Democratic election lawyer Bob Bauer.

    Meehan was overheard on Monday musing that Bauer, who advises clients like Senate Minority Leader Tom Daschle (D-S.D.), was spotted sitting with GOP election lawyer Ben Ginsburg at the Supreme Court during the oral arguments in McConnell v. FEC on Monday.

    Meehan, one of the chief sponsors of the reform law up for review, griped that Bauer’s decision to sit with a Republican lawyer in the morning session proved he’s been hostile to the new law all along and hopes it collapses.

    The Congressman told HOH on Wednesday that he was merely amused that Bauer, who believes the new law will hurt the Democratic Party, was showing his colors in his seat selection. “There’s a lack of bipartisanship in Washington, but not when it comes to the opponents of campaign finance reform,” he said.

    But he stressed that Bauer’s efforts to kill the bill haven’t angered him. “We beat him on the issue,” Meehan said. “He worked hard to get the Democratic leadership to oppose this bill and they didn’t. So it certainly doesn’t irk me.”

    Bauer did move during the afternoon session to sit next to Rick Hasen, a pro-reform scholar from California. And the lawyer said he doubts that his seating assignments will have any influence on the high court anyway.

    “I am flattered that the Congressman noticed that I was there,” Bauer told HOH. “But he needn’t be concerned, because I am reasonably certain that none of the Justices spotted me.”

posted by Rick 12:29 PM
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A.P. story on punch card case The A.P. story is here. My comprehensive analysis is in the post immediately below this one.

posted by Rick 12:25 PM
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The Ninth Circuit oral argument in the ACLU punch card case [Disclosure: I filed a motion/amicus brief supporting the ACLU's position in this case.] I just returned from oral arguments in the punch card case. The case was heard before three judges: Pregerson, Paez, and Thomas. All are generally seen as liberal judges appointed by Democrats. Going in, many thought the biggest hurdle for the ACLU was the issue of "res judicata;" the issue of the constitutionality of the punch card voting had been litigated by some of the plaintiffs in an earlier lawsuit brought by the ACLU (Common Cause v. Jones), which resulted in a consent decree in which the state, in settling the litigation, agreed to phase out punch card voting by March 2004. The res judicata issue in this case was that the parties cannot come back now and ask for another remedy they could have asked for in the earlier case.

Somewhat surprisingly, res judicata did not seem to be a hurdle in the minds of any of the judges. Judge Thomas that one of the problems he had with the district court's analysis of res judicata is "privity." The NAACP did not participate in the first lawsuit, and Thomas strongly suggested that its interests here sufficiently diverge from the plaintiffs in the first suit that res judicata should not be a problem. Res judicata was such a non-issue that it was not raised by any Justice during the ACLU's initial (25 minute) argument. Toward the end of the argument of the intervenor (recall proponent Ted Costa), Judge Paez noted that the district court judge did not actually decide the res judicata issue, just suggesting that he would be likely to decide it adverse to plaintiffs. All in all, it is hard to see that this panel would be holding that res judicata bars the case.

Turning to the merits the judges seemed receptive to the ACLU's argument equal protection argument (though I don't know that Judge Paez expressed an opinion on this), and Judge Pregerson seemed pretty hostile to the state's counterargument, asking questions like why it was constitutional to hold an election using an election system that the state itself had deemed "unacceptable." Judge Thomas asked a number of questions to all the parties about the equal protection standard that fell into two camps:

(1) What is the appropriate level of scrutiny to examine this case in light of Bush v. Gore? (My brief argued for a strict scrutiny standard.) Judge Thomas seemed to take the view (a view I had set forth) that by relying on cases like Harper and Reynolds, cases which set forth the right to vote as a fundamental right to which strict scrutiny applies, Bush v. Gore implied that strict scrutiny was the right standard. He said that the level of scrutiny question could well determine the outcome of the case. There was also some discussion of whether the earlier Burdick standard was more flexible, and meant that strict scrutiny did not apply. The ACLU argued that even under Burdick, when there are severe burdens on First or 14th amendment rights, strict scrutiny applies. Judge Thomas seemed somewhat receptive to this argument.

(2) How much of a disparity in voting systems does there need to be to make an equal protection violation? At one point, Judge Thomas said that Henry Brady, who had put in some declarations with social science evidence on the punch card disparities, had not done any tests of statistical significance, and said that (I'm paraphrasing here) "we ran analysis of the statistical significance and it looks like there's a problem." I was rather surprised that the judges might be doing their own statistical analysis. The ACLU later pointed out that the t-tests of Brady were in fact tests of statistical significance.

There was also discussion about, in balancing the hardships of holding the election with "unacceptable" machines versus the right to vote on the timetable set in the California constitution, whether there was any interest in having the two ballot propositions (at least) postponed until March. The judges seemed inclined to be considering this option seriously.

Judge Pregerson was hostile to the state's position. At one point he raised the issue of consolidation of precincts, and noted that this will impose a severe burden on voters of color. He also suggested that other provisions of the California constitution, such as California's equal protection clause, might trump the right to hold the election in October rather than March. He also made the point that because of what he termed a 90-day "happenstance" of when the Secretary certified the recall petitions, the recall otherwise would have been scheduled in March. When the state later argued that there was always the possibility of a recall election and that the plaintiffs must take the law as they found it (i.e., allowing a recall election if one qualified), Judge Pregerson said the state had to take the law as it found it, including the equal protection clause which protects voters.

There was very little discussion of the Voting Rights Act (section 2) claim. Judge Paez, one of the members of the panel (and the one who gave away the least of where he stood on the merits of the claims beyond res judicata), was the author of a recent voting rights case that both sides are relying upon here.

The court can rule at any time, and I would expect a ruling by early next week. The state asked at the end of its argument time that if the court is inclined to reverse the district court and delay the election that the court stay its order to give the state time to appeal to the Supreme Court.

posted by Rick 11:39 AM
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