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.
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Fallout from Bustamante campaign finance decision See this Sacramento Bee report.
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"Major challenge to Minnesota campaign laws headed to court" The Minnesota Star Tribune offers this report (link via How Appealing).
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Unintended effect of McCain-Feingold? See this report in The Hill.
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Tomorrow this blog moves to a new site Stay tuned for details.
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Monday, September 29, 2003
"When Have Recalls Succeeded in California?" Joshua Spivak offers these thoughts.
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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.
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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.
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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.
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"'527' Committees' Success Could Aid Democrats" See this Washington Post report.
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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.
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"Campaign law requires 'I approved this message' line in ads" A.P. offers this report.
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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.
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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.
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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.
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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.
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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.
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Voting rights for ex-felons The Christian Science Monitor offers this report (thanks to How Appealing for the pointer).
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"Recall Finds Loopholes In Campaign Finance Law; Money Flowing for Davis, Candidates" The Washington Post offers this report.
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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.
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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.
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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.
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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).
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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.
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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.)
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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.
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Larry Solum offers his thoughts on the election See here.
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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?
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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.
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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.
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Karlan and Kmiec talk about recall lawsuit Details here at "How Appealing."
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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).
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Solum on claim preclusion in the recall punchcard case Don't miss Larry's informative post here.
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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.
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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.
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Breaking News: Ninth Circuit ruling to be issued tomorrow morning Details at How Appealing.
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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.
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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.
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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.
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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.
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"The Supreme Court's Extraordinary Campaign Finance Reform Oral Argument" Michael Dorf offers these thoughts on Findlaw.com.
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"Campaign Reform Boomerang" Thomas Edsall reviews two recent campaign finance books here.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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"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."
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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.
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Erwin Chemerinsky oped on the recall decision It is available here.
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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.
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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?
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"Editorial: Ounce of prevention; Court decision assures a fair recall election" The Sacramento Bee offers this editorial.
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"Editorial: As the Recall Election Turns" See this Ventura County Star editorial. (Thanks to David Ettinger for the pointer.)
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"Court Faces Stark Choice on McCain-Feingold" Tom Mann offers these thoughts on the BCRA oral argument.
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"The Return of Bush v. Gore" Professor Jack Balkin's thoughts are here.
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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."
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"Shelley to Announce Recall Decision" The Los Angeles Times offers this update.
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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.
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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.
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"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.
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Solum on res judicata argument in the recall case Don't miss this very thoughtful post.
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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.)
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"Case Has Echoes of Bush v. Gore" The San Jose Mercury News offers this report.
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"California Told to Postpone Recall" The Washington Times offers this report.
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"Campaign Finance Reform Myths" Bruce Fein offers this oped.
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"Enthusaism Wanes for Election Changes; Bush, Hill Slow on Commission" The Washington Post offers this report.
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Monday, September 15, 2003
On NPR's Day to Day tomorrow morning. Talking about the recall decision.
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"Fear of chads delays recall" UPI offers this report.
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"Absentee voters urged to keep casting ballots" The Contra Costa Times offers this report.
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McCain May Block Appointment of Member of FEC The Hill has this report.
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Something to criticize in the recall decision On page 34, the opinion reads: "The first criteria for our consideration...." That makes me cringe.
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"Calif. Ruling Hangs on Chad of Bush v. Gore" USA Today offers this story.
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"9th Circuit Slams the Brakes on Recall" The Recorder offers this report.
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"One More Round for Bush v. Gore" The Washington Post offers this analysis of the punch card suit legal issues.
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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.
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Punch card stories the Los Angeles Times; San Francisco Chronicle; NPR; A.P. (more to come)
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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.)
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"Why Did California Adopt the Recall?" Joshua Spivak offers this historical analysis.
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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.
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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.
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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.
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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.
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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.
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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).
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"Campaign Finance Reform: What the Court Should Do" Stuart Taylor offers these thoughts at National Journal.
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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.]
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"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.
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"Controversial 9th Circuit to Judge Recall" The Washington Times offers this report.
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"Democratic Senate Majority Fund Slows Activity As Group Awaits Decision in BCRA Court Case" Roll Call offers this report (paid registration required).
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"Buying a High-Priced Upgrade on the Political Back-Scratching Circuit" Adam Cohen has this McCain-Feingold-related oped.
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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.
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"Vote Boils Down to---Where's Waldo?" Tony Quinn offers these recall-related thoughts. On a similar note, see this Condorblog post.
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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.
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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.
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Texas Re-Redistricting Suit Dismissed Details at How Appealing. The order itself has been posted here.
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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.)
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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.
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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.
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"Blogging the Recall" Washingtonpost.com offers this report.
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"State Senate Democrats Return to Texas" The latest in the redistricting saga from this New York Times article.
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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.)
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Thursday, September 11, 2003
"Judges Fear Calif. Poll Problems" See this Washington Post report.
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"Fed. Panel Hears Texas Redistricting Case" A.P. offers this report.
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"Dean Weighs Flip-Flop on Spending" MSNBC offers this report.
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"9th Circuit May Put Brakes on Recall Election" The Recorder offers this report. See also this A.P. report.
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"Judges Grill State on Use of Punchcard Ballot" The Los Angeles Times offers this report.
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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.
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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.)
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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.
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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.
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"A Congress in Reserve" Cal Thomas offers this commentary on the McCain-Feingold case.
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"No Clear Victors Emerge" Roll Call offers this post-BCRA argument roundup (registration required).
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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.”
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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.
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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.
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Off to court I'll be attending the oral arguments in the ACLU punch card suit this morning, and will be blogging later about them.
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Wednesday, September 10, 2003
"To err is human, to defer sublime" Clark Kelso offers this analysis in the California Bar Journal, praising the California Supreme Court for, among other things, not intervening in the recall process.
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The Rehnquist quote in question Courtesy of the Findlaw transcript page 163 (link in the immediately prior post), here are the Chief Justice's words that have been giving everyone in the reform community concern that he might abandon Austin:
I think one of the -- one of the dubious things about Austin is one of the things it relied on was the fact that the corporation's members or did not -- or owners did not necessarily represent a large amount of public opinion, and it seemed to me, I voted in the majority, but it seemed to me since then that that's the whole purpose of the First Amendment is to allow people who perhaps don't have much in the way of public opinion try to change public opinion.
As I had mentioned in my earlier analysis of the afternoon session, this doesn't mean the Chief is ready to abandon all rationales for treating corporations differently. Indeed, it says nothing about his position in Bellotti, where, in dissent, he stated his belief that corporations could be barred from making campaign expenditures in connection with ballot measure campaigns where the possibility of quid pro quo corruption is absent. So it is hard to know how much to read into the Chief's statement.
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BCRA oral argument transcript now available on Findlaw Click here.
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Commonwealth club forum on recall to be broadcast on radio For those in the San Francisco bay area, the forum I participated in last week on the recall will be broadcast on KQED FM (88.5) tonight at 8 pm. UPDATE: Web users can listen from anywhere at this link.
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"Perry Calls 3rd Session for [Texas] Remap" The Fort Worth Star-Telegram offers this report.
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"Bustamante still under fire over spending limits" The Sacramento Bee offers this report.
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"THE RECALL CAMPAIGN; U.S. Judges to Hear Suit on Delaying Election*Appellate panel will weigh arguments that punch-card machines are unconstitutional, possibly Gov. Davis' last chance to put off vote" The Los Angeles Times offers this report.
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Colorado redistricting litigation news See here.
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Catching up from yesterday Links to the major reports from yesterday (most via How Appealing): Slate; New York Times (and here); News Hour; Law.com: Boston Globe; Los Angeles Times; Washington Post; NPR. Other news stories are collected by Howard here.
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Monday, September 08, 2003
And in other election law news today.... The Denver Post offers "Colorado Justices Set to Consdier GOP's remap." (Thanks to J.J. Gass for the link.) The Ninth Circuit, in Idaho Coalition United for Bears v. Cenarussa, struck down an Idaho law that required collecting signatures to place a ballot measure on the ballot from a certain number of counties with unequal populations: "Because Idaho's counties vary widely in population, this geographic distribution requirement favors residents of sparsely populated areas over residents of more densely populated areas in their respective efforts to participate in the process of qualifying initiatives for the ballot. The district court held that this unequal treatment violates the Equal Protection Clause of the Fourteenth Amendment." (Link via How Appealing). I'll be traveling tomorrow, so it is likely I'll do little blogging.
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Early post-BCRA argument reports Washington Post; A.P.; New York Times; Los Angeles Times; Reuters; NPR (audio); UPI; Knight-Ridder; BBC. See also Tom Mann's Washington Post internet chat.
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BCRA afternoon arguments: some first impressions The afternoon session was focused on issue advocacy--particularly BCRA's redrawing the line between election speech and non-election speech for purposes of limiting corporate and union spending to a separate PAC. Again, as in the morning, every Justice besides Justice Thomas asked at least one question.
Some more details on the afternoon below, but my initial bottom line: The Court seemed very likely to uphold the disclosure provisions of the law (something I'm personally happy about, as this was the focus of the amicus brief I wrote for the Center for Governmental Studies---link on the right), even under the new bright line test of section 201 of BCRA, but it is very unclear whether the corporate and union separate PAC requirement will survive. That was how I had felt going in, but for different reasons. I had thought that some Justices would balk at redrawing the line because it would capture too much "genuine" issue advocacy (the substantial overbreadth point). Instead, it looks like all the Justices that talked believe that the express advocacy test of Buckley is unworkable and cannot be adhered to. The surprise was what to do about it.
The government argued that if you accept the proposition that the express advocacy/issue advocacy line is unworkable, and given the Supreme Court's earlier opinion in Austin v. Michigan Chamber of Commerce upholding the separate PAC requirement for corporations and unions, that Congress could extend the PAC requirement to electioneering communications under BCRA's bright line test. The plaintiffs in this case did not call for Austin to be overruled. Nonetheless, it is clear that Austin is on the table. Thus this case may be even more important than we previously thought: depending on some swing Justices the Court could conceivably reverse Austin and allow unlimited corporate and union expenditures, whether on express advocacy of the election of a federal candidate or otherwise.
Austin was clearly in play and on the minds of the Justices. Of the 6-3 majority on the Court only two Justices in the majority remain on the Court and the three dissenters remain. Moreover, one of the two Justices in the majority in Austin, the Chief Justice, expressed the view today that at least one of the rationales of Austin no longer convinced him and that he made a mistake voting the way he did in that case. In particular, the Chief Justice no longer seems to accept the idea that the government may have an interest in preventing the use of large aggregations of wealth (accomplished with the corporate form) to be used for political purposes in ways that don't reflect public support for the corporation's ideas. (I have elsewhere termed this the "barometer" equality rationale.)
Now the Chief Justice could still vote to uphold Austin based on its other rationale, shareholder protection. If the Chief does not accept Austin, there apparently would be four sure votes to uphold the corporation/union PAC requirement (Breyer, Ginsburg, Souter, and Stevens) and four votes apparently to strike it down (Kennedy, Rehnquist,Scalia, and Thomas). That leaves Justice O'Connor, who was one of the Austin dissenters. I don't necessarily put her in the category of voting to strike down the PAC rule because of a question she asked immediately when Floyd Abrams came to the podium (I'm paraphrasing here): "Do you take the position that no effective regulation of electioneering communications is possible?"
Now perhaps Justice O'Connor was thinking only of the new bright line test for purposes of the disclosure regulations. There was widespread support for those regulations from the Court, even from Justice Scalia. So I am optimistic the Court will uphold most (though not necessarily all---there were some questions about particular disclosure provisions) of the disclosure rules. But perhaps this shows that she is interested in keeping the longstanding corporate and union PAC requirement in effect.
There was some evidence that she might be sympathetic to such an argument when Justice O'Connor signed on to the Beaumont decision in June, which seemed to do much to rehabilitate the Austin rationale. Interestingly, Beaumont was not mentioned at all at today's argument by any party. (Thanks to Bob Bauer for pointing this out to me.) [UPDATE: Two people who attended the argument e-mailed to say that this is not correct, and that Seth Waxman mentioned Beaumont.]
In the end, we certainly have more information to consider regarding the various Justices' views on these issues. But my own read of the oral argument is inconclusive. We will just have to sit tight and await an opinion or set of opinions.
I had heard that the Court has a conference set Wednesday to talk about the case and presumably assign a chambers to begin drafting. I have heard rumors that an opinion could issue as early as the first Monday in October, when the Court's new term ends and as late as Dec. 15, when the Court goes on break for a month and just before the BCRA's electioneering communications rules would kick in 30 days before the first sets of presidential primaries and caucuses. I'll predict an opinion out in late October or November, just based upon how long I think it will take to wade through the 22 issues (and respond to the inevitable multiple opinions) in the case.
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BCRA morning arguments: some first impressions This morning the Supreme Court heard the first part of oral argument in the BCRA (McCain-Feingold) case. The morning section focused on the soft money provisions; the afternoon session will focus on issue advocacy (though there is a 5 minute rebuttal remaining for Bobby Burchfield). Every Justices besides Justice Thomas asked at least one question.
Some more detail below, but here is my initial bottom line: Oral argument shed very little light on where the likely "swing" Justices in this case---Justices Rehnquist and O'Connor---stand on the constitutionality of the soft money provisions. The Justices all seemed to reject a central argument of Ken Starr and Bobby Burchfield for the plaintiffs: that "federalism" requires striking down the prohibitions in BCRA s 323(b) for state and local parties. (If that section falls, everyone seems to agree, a loophole would be opened so wide as to effectively eviscerate the soft money provisions.) But there was some sympathy from some Justices over regulation of state and local parties, and some Justices suggested that the same arguments made in "federalism" language could be recast as simply a First Amendment concern---the First Amendment might prohibit going too far in regulating state and local parties. There were also questions from Justices Breyer and Ginsburg on why the "solicitation" rules treat officeholders better than party officials in soliciting money for state races, as well as questions about national parties setting up accounts purely to raise soft money. My guess is that these Justices (and I presume Justices Stevens and Souter) would vote to uphold most of the soft money provisions, with perhaps some tweaking of the statutory language/striking down of minor portions to deal with certain First Amendment concerns. Justice Scalia was, predictably, very hostile to any of the regulation, sounding as though he thinks the problem is not BCRA, but Buckley itself. I assume Justice Thomas is in this place too, from his earlier opinions. Justice Kennedy seemed skeptical of regulations of the parties, but asked probing questions to both sides.
By my count that leaves four justices likely to uphold substantial portions of BCRA, and two or three that do not, leaving the Chief Justice and O'Connor in the middle. O'Connor asked whether the pre-BCRA regime of allocating hard and soft money by political parties depending on state and federal purposes was valid. She suggested that something that the allocation rules in place for so many years appear valid, and other Justices seemed to suggest that as to the national parties, these rules were not very much different than the old allocation rules. O"Connor also asked if there was evidence in the record of "access corruption" to fund purely state and local party activities.
The Chief made a few comments and asked a few questions. Following Justice Breyer's comment that some of the soft money provisions might be upheld for administrative reasons, the Chief remarked that when you are talking about the First Amendment, administrative reasons generally are not good enough. The Chief made it clear that he viewed this as a First Amendment issue, not a federalism issue. When Ted Olson for the government stood up, the Chief asked him to address a question that I wrote down as something like: Please address whether if we strike down 323(a), could 323(b) survive? I don't think Olson gave an extended answer to the question (I think he said yes), but the question is curious. There was very little talk about striking down 323(a), the national provision. Perhaps I misheard, or perhaps he meant to ask if the national provision would continue to stand if the court struck down 323(b), the state and local provision.
At another point, Rehnquist stated that the Court in Buckley upheld contribution limits because of the corruption and appearance of corruption, but that Congress could not "willy-nilly" impose contribution limits on whatever it wanted. Rehnquist also noted the holding in Colorado Republican I that the evidence parties can corrupt is sometimes too attenuated. He also noted that in the record below there was a "dearth of evidence" of quid pro quo corruption. At another point he said that parties do not exist at the will of Congress.
In all, a very interesting morning but one that I think sheds not too much light on what the Court ultimately will do. I now need to run back to Court for the afternoon argument on issue advocacy. I'll begin posting some time before 4 pm EDT, I hope.
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Back, I hope, a bit after noon eastern time to blog on the Supreme Court's BCRA argument Stay tuned.
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More BCRA previews and opinions See A.P.; the Boston Globe (see also this editorial); John Lott's oped; this Washington Times editorial; and Robert Samuelson's oped.
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"Clout Shifts with the Change in Campaign Finance Rules" The New York Times offers this report.
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Sunday, September 07, 2003
Voting technology worries with touchscreen ballots in recall See this Sacramento Bee report.
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More on ACLU punchcard case See "Wild-Card Court; The last best hope for Gray Davis may reside with a panel of unpredictable judges."
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"Supreme Court may look to Arizona's `clean' elections in campaign finance ruling" Knight-Ridder offers this report. The Atlanta-Journal Constitution offers Justices Get Georiga Girl's Campaign Reform Suit." (See also this article.) U.S. News offers "Does Money Talk?". The Los Angeles Times offers "Supreme Court to Take Hard Look at Ban on 'Soft Money'." (Many of these links courtesy of How Appealing.)
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"Showdown over money in politics; In rare summer session, Supreme Court Monday takes up issue of 'soft money,' which may reshape campaigning." The Christian Science Monitor offers this report.
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The Estrada Withdrawal: The Sky is Not Falling Word came earlier this week that Miguel Estrada, President Bush's nominee to fill a vacancy on the United States Court of Appeals for the D.C. Circuit, has withdrawn his nomination. Estrada's nomination, and the subsequent Democratic filibuster of his nomination, provoked a great deal of commentary both in traditional media and in the blogosphere. Larry Solum and I have had an ongoing debate on the significance of the Estrada filibuster, and particularly whether it represents a downward spiral on judicial nominations or merely business as usual. (For a guide to our debate, click here. )
On Thursday, Larry posted "Withdrawal: What Does the Estrada Filibuster Mean?" I agree with much of what Larry has to say, but I have to take issue with one of his central points, as well as his overall theme.
I take issue with the following important point made by Larry: "Ideology is now on the table." As Larry characterizes it, Senator Schumer threw down the gauntlet two years ago in calling for ideology to be explicitly considered, and it appears, at least in the short run, that he has won: Estrada withdrew because Democrats filibustered him because of his ideology. I agree that Schumer made the point explicitly, and that Estrada withdrew for precisely the reasons that Larry gives. Where Larry errs is in leaving the impression that Schumer was the one who put ideology on the table. Ideology has been on the table for a very long time (going back at least to the Bork nomination). The reason that the Estrada situation seems different is because Republicans have forced Democrats to actually filibuster nominees that they reject for ideological reasons. In the past, including when President Clinton nominated more liberal judges to fill appellate court positions, Republicans used a variety of tactics (such as withholding "blue slip" and putting anonymous holds on nominees) for the same reason that Democrats blocked Estrada: ideology.
All that Schumer did was take a widespread practice that was hidden and bring it up for explicit discussion, and that is laudable. It allows people like Larry to argue (mistakenly in my opinion---for reasons I have explained in earlier posts) that we can move to a system where judges are chosen for "virtue," not ideology. Making ideology explicit also helps voters control the filibuster process: if Democrats use the ideology card too much for a large number of judicial nominees, they will lose credibility. That is why Democrats rationally have targeted the filibuster to nominees they view as the most ideologically extreme, especially those on high profile courts.
I also take issue with Larry's theme, that if the sky is not falling yet, it will be falling soon. It may be that President Bush will nominate an ideologically extreme candidate to fill the next Supreme Court vacancy, and that this could lead to a stalemate and escalation by both parties (the so-called nuclear option). In earlier posts, however, I have explained why it would not be rational for Republicans (particularly Republicans with a bare majority in the Senate, and including some moderate Republicans who are likely to side with Democrats on some ideologically extreme nominee) to "go nuclear."
Far from showing that the sky is falling, the Estrada withdrawal shows that the system is working well. Democrats are using the filibuster sparingly---with most judicial nominees, including for appellate court positions, being confirmed by wide margins in the Senate. Democrats use the filibuster of a few high profile nominees to please their base and to police ideological outliers nominated by the Bush administration. Republicans cry "foul," and claim this is an escalation (even claiming to consider the nuclear option), and in so doing please their base. Along the way, most of the President's nominees sail through the confirmation process. The process is working, not failing.
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Recall news and commentary Mark Paul offers an oped, Bush v.Gore Redux: Chads Hang Over Recall." The Sacramento Bee offers "Bustamante to shift disputed donations; The $3.8 million move to fight Prop. 54 aims to quiet his critics." In response to this move, the Los Angeles Times reports here that Ward Connerly, Prop. 54's proponent, all but concedes defeat: "'Gulp,' Connerly said when informed of the decision. A nearly $4-million campaign against his measure, he said, 'probably dooms' it. 'I'm never throwing in the towel. But I've been around the block. There is no way we can match that.'"
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More BCRA articles The Washington Times offers "Campaign-finance law reaches high court." The Arizona Republic offers "McCain Legacy on Line as Court Tackles Campaign-Finance Law."
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Potter, Starr on C-SPAN Now Trevor Potter has just begun talking. I had thought he and Starr would be on together. I now assume Starr will appear after Potter. UPDATE: They are both on now.
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Saturday, September 06, 2003
Law.com report on Perdue v. Baker See here.
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"Judges kill rights suit, back recall on Oct. 7; Appellate court yet to rule on challenge to punch cards" The San Francisco Chronicle offers this report. In response to some things I was quoted as saying in the article, I received an e-mail from a reader who wrote: "I must say that I am greatly puzzled by the ACLU law suit wanting unproved electronic terminals in all upcoming elections. I would like to think that the ACLU is not technologically challenged but it does appear totally misguided on this matter. A large group of computer scientists from leading universities expressed serious concerns about the use of the current crop of electronic voting machines. The researchers from John Hopkins say that these touchscreen voting terminals are rife for vote fraud, vulnerable to hackers, multiple votes and vote switching."
There is indeed a great controversy over some of the new electronic (or DRE) voting machines, which has led to some heated debate on the votingtech list (link to the list on the right side of the blog). The ACLU suit does not ask the court for an order to use DREs. It asks for an order eliminating the use of punch card technologies non-uniformly throughout the state (a position I have supported in the amicus brief you can also access on the right side of the blog). Whether the new techologies could create equal protection problems of their own is a separate question that may itself have to be litigated some time.
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More BCRA pre-argument analysis and opinion The Washington Post offers "High Court Takes on High Stakes Dispute." The New York Times editorializes "The Case for McCain-Feingold." The Cincinnati Post offers "'Soft Money' Law Heads to Supreme Court."
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Blogging from Washington, D.C I have arrived in Washington D.C. As I noted, if all goes according to plan (and it may not---Blogger was down for hours today before my flight, precluding me from posting everything), I hope to blog during the lunch break (around noon EDT) and at the end of argument (around 3:30) Monday about the Supreme Court argument in the McCain-Feingold (BCRA) case which I'll be attending.
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Friday, September 05, 2003
Documents in important partisan gerrymandering case The Supreme Court will hear an important partisan gerrymandering case in the October 2003 term, Veith v. Jubelirer. Jenner and Block, the firm representing the appellants, has set up a web page here (scroll down to 9/4/03) with links to briefs in the case that have been filed thus far.
This is potentially an important case and I'll be commenting on it in the coming months.
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"Federal Panel OKs Oct. 7 recall vote" A.P. offers this report on the preclearance decisions. UPDATE Here is the text of the Court's order (footnotes omitted):
Plaintiffs seek a preliminary injunction prohibiting Defendants from going forward with the special election on Proposition 54 (also known as the Classification by Race, Ethnicity, Color or National Origin (CRECNO) Initiative) currently scheduled for October 7, 2003 and from conducting any election to decide Proposition 54 other than on March 2, 2004. On August 15, 2003, this Court issued an order to show cause why injunctive relief should not be granted and a temporary order restraining Defendant Monterey County (“the County”) from mailing absentee ballots to overseas voters without first obtaining preclearance of certain changes in voting procedures pursuant to Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (“Section 5"). Since August 15, 2003, Defendants have obtained Section 5 preclearance as to all of the changes at issue except for five precinct and polling place consolidations identified in a letter from the Civil Rights Division of the United States Department of Justice dated September 4, 2003.
The County has represented to the Department of Justice and to this Court that plans for the remaining consolidations have been withdrawn and that the consolidations will not occur. The County also has represented that it will provide additional bilingual poll workers at these locations.
The right to vote is fundamental to a democratic society, and thus litigation to ensure compliance with the provisions of the Voting Rights Act is of the utmost importance. However, in cases brought pursuant to Section 5, the role of the three-judge 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. 9, 23 (1996). 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. The court does not assess independently whether the Department of Justice has acted appropriately in granting preclearance.
Because all changes in voting procedures subject to Section 5 have been either precleared or withdrawn, the Court concludes that there is no factual basis for injunctive relief at the present time. The Court nonetheless will retain jurisdiction to grant appropriate injunctive relief in the event that circumstances change prior to the October 7, 2003 election, or if the County for any reason fails to act in accordance with its representations to the Department of Justice concerning the withdrawal of the five consolidations and the provision of bilingual poll workers referenced in the Department’s second letter dated September 4, 2003. Accordingly, and good cause therefor appearing, IT IS HEREBY ORDERED that the motion for preliminary injunction is denied without prejudice. The temporary order restraining mailing of absentee ballots to overseas voters is dissolved, conditioned upon the County’s making reasonable efforts to expedite delivery and return of such ballots prior to the October 7, 2003 election. The Court retains jurisdiction to grant appropriate relief in the event of a change in circumstances prior to the October 7, 2003 election.
Footnote 3 of the order reads:
A decision by the Department of Justice to grant preclearance does not bar future litigation under other provisions of the Voting Rights Act, nor does it preclude the Department of Justice itself from interposing subsequent objections to changes in voting procedures within a sixty-day period. 28 C.F.R. §§ 51.41 and 51.43.
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Shelley notes overvote potential From this San Jose Mercury News article:
And in Berkeley, Secretary of State Kevin Shelley warned that the recall election could face Florida-like problems, where voters in some counties selected more than one candidate in the 2000 presidential election, invalidating their ballots.
Six California counties, which account for half the state's population, will be using punch-card ballots. But because there are 135 candidates, some voters will use multiple cards. If a voter mistakenly chooses a candidate on each card, the ballot will be discarded.
``My biggest concern is over-votes. If you over-vote, that throws out the ballot,'' Shelley told a history class at the University of California.
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"Fewer polling sites OK'd; MONTEREY COUNTY DEAL MAY RESOLVE RECALL LAWSUITS" The San Jose Mercury News offers this report, which begins: "The U.S. Department of Justice removed one of the final legal hurdles to California's historic recall election late Thursday when it ruled that Monterey County's plan to consolidate polling places will not violate the rights of minority voters. After more than two weeks reviewing election maps, poll locations and poll worker information, the Justice Department approved all but five of the 86 voting sites for the Oct. 7 election on whether to recall Gov. Gray Davis. County officials then abandoned their plans for the remaining five precincts under question, agreeing to expand the number of voting locations in parts of Salinas, Natividad, Elk Lake and Pajar." See also this Contra Costa Times report.
It thus appears that the preclearance hurdles to the October 7 recall date, leaving the ACLU punch card suit, to be heard by the Ninth Circuit on Sept. 11. (Disclosure: I filed a brief supporting the ACLU in the punch card case.)
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"Bustamante is sued; Takes $700,000 More" The Sacramento Bee offers this report. See also this Contra Costa Times report.
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More BCRA roundups and opinions A.P. offers "Supreme Court Eyes Campaign Finance Laws." E.J. Dionne writes "The Radical Goal of McCain-Feingold's Enemies." Professor Edward Foley offers "The Ultimate Line-Drawing Case" (at BNA, but accessible to non-subscribers at the link above).
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Thursday, September 04, 2003
"Monterey Vote Fight Not Surprising" The San Jose Mercury News offers this report on the preclearance issue remaining in the recall. NBC11 offers this report noting that the hearing before the three-judge court on the preclearance issues is set for tomorrow.
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Trevor Potter and Ken Starr to debate BCRA's constitutionality Tune in to C-SPAN on Sunday from 9 am to 10 am.
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"California campaign gifts spur lawsuit" The Washington Post offers this recall-related report.
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"The Elephant in the Courtroom" Bonnie Tenneriello of the National Voting Rights Institute offers this opinion piece on one aspect of the BCRA litigation.
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"Campaign Reform Decision Could Set Balance of Power" USA Today offers this report (and also this sidebar on the Justices' positions in the campaign finance cases).
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""Hard Money' Is Easy to Come By" Norman Ornstein and Tony Corrado offer this oped in the New York Times.
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Appellees' briefs filed in ACLU punch card suit The Secretary of State and recall proponent Ted Costa have filed their separate appellees' briefs in the ACLU punch card case, which will be heard before the Ninth Circuit at a special hearing on Sept. 11 at 10 am in Pasadena. The ACLU's reply brief is due September 8. (Once the documents are posted on Findlaw, I'll post a link.) As with his brief in the trial court, the Secretary's brief does not engage the merits of the equal protection argument, not even citing Bush v. Gore once, a central case in the ACLU's brief and in the amicus brief I have asked the court to receive supporting the ACLU. Costa's brief does address the merits. Once I have had a chance to read the briefs in detail, I will post more comments.
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"As Politicians Mount Races, Fund-Raising Law Goes Before the Supreme Court" The New York Times offers this report, which contains the following notable point from the always knowledgeable Linda Greenhouse: "As their expedited schedule demonstrates, all the justices are aware of the political calendar. Their goal is almost certainly to have a decision by Dec. 15, when the court begins a four-week recess."
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Symposium on the Recall at USC, September 23 You can find all the details here.
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Voting technology in the California recall The California Voter Foundation has posted "Directory of California Voting Systems; A county-by-county directory of voting systems and equipment used in California's 58 counties as of August, 2003." Very useful.
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Baker v. Purdue decided This case involved whether the Georgia attorney general or Georgia governor got to control the litigation in the United States Supreme Court's decision last term in Georgia v. Ashcroft. For the significance of the decision, see Ed Still's post here.
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The Estrada withdrawal Those readers of this blog who began reading at the time of the California recall may not know that I have had a long-running debate with Larry Solum (over at Legal Theory) about judicial selection and the Estrada filibuster. I have been travelling today, without a chance to follow developments. Larry has posted a typically brilliant post, this one on the topic of Estrada's withdrawal here. Don't miss it. I hope to write a response soon.
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"High Stakes at the High Court" Al Hunt offers this oped in today's Wall Street Journal. Thanks to Steven Sholk for the pointer.
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"Anything But Typical; Election Law Case Set Apart by Early Argument-and Four Hours of It." The September 2003 ABA Journal has this report (no link online yet) beginning on page 22. (Thanks to Steven Sholk for the pointer.)
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"Bustamante Faces Suit Over Large Donations" The Sacramento Bee offers this report, which begins: "Republican state Sen. Ross Johnson said Wednesday he will sue to block Lt. Gov. Cruz Bustamante from collecting millions of dollars in large donations for his governor’s race, after the state’s political watchdog agency said it is unlikely to rule on complaints about the Democrat’s fund-raising until after the recall election." See also this Los Angeles Times report (with more detail here).
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"Challenge to Oct. 7 vote may be withdrawn" The Merced Sun-Star offers this report, which begins: "Plaintiffs seeking to bar Merced and Kings counties from issuing ballots in October’s statewide recall election asked a federal judge Wednesday to cancel a hearing on the issue." The separate Monterey county suit still goes forward because of the lack of preclearance of the consolidation of polling places thus far.
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Wednesday, September 03, 2003
"Court Ruling May Echo for Decades" See this Roll Call article (subscription required) which begins: "Forget the Redskins — the hottest ticket in town this month may well be a seat inside the chamber of the U.S. Supreme Court, which will return a month early to convene a special four-hour session on Monday to consider the merits of the Bipartisan Campaign Reform Act of 2002."
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Federalist Society lunch on legal issues surrounding the recall Chuck Bell (counsel to the California Republican Party) and I will be speaking at a September 25 luncheon on legal issues surrounding the recall at the Law Offices of Alschuler Grossman Stein & Kahan, The Water Garden, 1620 26th St., Fourth Floor, North Tower, Santa Monica. MCLE Credit: One Hour. If you are interested in attending, the cost of the luncheon is $25 if paid in advance, or $28 at the door. Please send checks (made payable to the Federalist Society) to Jeremy Rosen at Horvitz & Levy llp, 15760 Ventura Boulevard, 18th Floor, Encino, California 91436. Prepayment must be received no later than Friday, September 19, 2003.
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FPPC sues Connerly to disclose source of contributions supporting Proposition 54 Dan Weintraub has the details here.
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"Court ready to hear 'soft money' case" UPI offers this report.
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"Punch-drunk law" Debra Saunders offers this commentary about the ACLU recall lawsuit. (Disclosure: I filed an amicus brief siding with the ACLU in this case.)
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Campaign finance recall news See this Los Angeles Times report. See also this Sacramento Bee report .
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California recall forum I will be speaking along with William Bagley, Art Torres (Ca. Dem. party chair), Duff Sundheim (Ca Rep. party chair) and David Iverson at the Commonwealth Club (San Francisco) tomorrow at noon. (Details here.) KQED television in San Francisco is supposed to broadcast a tape of the forum some time next week.
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Justice department grants preclearance of additional voting changes, but consolidation issues in Monterey county remain See this Sacramento Bee report.
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"Democrats' hard money blues" The Washington Times offers this report.
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Legal Times Preview of BCRA case It is available here.
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Blogging from BCRA argument If all goes according to plan, I will be attending oral argument at the Supreme Court on Monday. I hope to blog about the first half of the argument during the lunch break (approximately noon eastern time) and about the second half of argument after it wraps up (approximately 3:30 eastern time).
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Supreme Court to release oral argument audio from BCRA case right after argument C-SPAN plans to broadcast it, beginning around 3:45 eastern time Monday. See here (link via How Appealing (welcome back Howard!)).
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Tuesday, September 02, 2003
Roll Call campaign finance articles Monday's edition featured "Legal Defense Funds Not Subject To New Campaign Law, FEC Rules" and "FEC to Examine Rules for Mailing Lists." There is also this profile of California Democratic party operative Bob Mulholland in the new "Players" column. All Roll Call articles, unfortunately, require a paid subscription to access.
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"Court prepares for case on campaign finance law" The Hill offers this report.
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"One of Texas 11 Seeks an Exit Plan" The Washington Post offers this report.
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Panel set in ACLU punch card case The punch card case has been assigned to three Ninth Circuit judges viewed as liberals---Paez, Pregerson, and Thomas. Oral argument is 10 am September 11 in Pasadena. (Disclosure: I filed an amicus brief supporting the ACLU in this case.)
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Recall litigation roundup Over the long weekend, I published this post summarizing legal developments thus far in the recall.
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"County's absentee ballot restrictions lifted" This Merced County-Star article begins: "A federal judge has lifted restrictions on Merced County’s ability to print or issue ballots for the Oct. 7 statewide election.
On Friday, the U.S. District Court in Fresno barred the county from printing, issuing or receiving absentee ballots pending the outcome of a case alleging voter rights violations.
But, according to Merced County Auditor Steve Jones, the county was informed over the weekend that the judge’s order had been amended and the county was allowed to go ahead with the printing and issuing of ballots."
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Appeal in suit challenging the use of touchscreen votes A panel of Ninth Circuit judges will hear the appeal in Weber v. Jones on October 8. According to a press release I just received, the case "challeng[es] the constitutionality of paperless 'touchscreen' voting machines which do not permit voter-verified ballots and a true external recount in the event of a contested election." The case was heard by Judge Wilson, who also decided the Common Cause v. Jones punch card suit and the recent ACLU punch card suit. Links to some case-related documents, including the lower court opinion, are available here.
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"Judging Campaign Finance" The Washington Post offers this editorial on the McCain-Feingold appeal to be heard on Monday by the Supreme Court.
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Monday, September 01, 2003
"Reform Only Diverts Campaign Cash" The Boston Herald offers this report.
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Article on the history of the recall See Joshua Spivak's article here.
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