Five More Months of This?!?!

The 9th Circuit Court of Appeals has just ruled that the California recall must be postponed, due to concerns over hanging chads and suchlike. The ruling (which you can read here) is likely to be appealed to the U.S. Supreme Court. Recall legal blogger Rick Hasen will likely have interesting observations throughout the day.

Comments

[Citizen]

?Give us 24 hours. We?ll get something off to the Supreme Court,? he said.

Give 'em hell.

In addition, some counties, to cut costs and conduct the election on a hurry-up schedule, were reducing the number of polling places, a move civil rights groups said would disenfranchise minority voters in areas with low voter turnout.

Because minorities are too stupid to find polling places? What does this mean?

[thoreau]

I volunteered to work at the polls during the recall. The only thing I want is an outcome with a margin larger than the statistical margin of error. Whether Davis is recalled or retained, and whether the winner is Arnold, Bustamante, or Gary Coleman, I really couldn't care less as long as the margin is robust. That's all I want.

Oh, and no more lawsuits.

[R.C. Dean]

How is it that a voting system that was perfectly adequate to elect a governor less than a year ago, punch card ballots and all, is constitutionally inadequate to recall him?

Why is it that every single conceivable shortcoming in the voting system as a whole has a disproportionate impact on minorities? Its like the old joke: "World Ends: Women, Minorities Hardest Hit".

[Mudflap]

Letys recall the ninth circuit while were at it

[Mudflap]

Lets. Big fingers small brain are my only excuses

[Antonin]

Note that the governing legal precedent should be familiar to the Supreme Court: Bush v. Gore, 531 U.S. 98 (2000).

And the equal protection claim in the California case is not that there is race discrimination or anything like that. Rather, it is the exact same claim that the Supremes used in Bush, namely that there is a risk that some voters' votes will count for less than other voters.

Knowing the integrity of Scalia and friends, I'll bet they reverse and overturn the Bush precedent.

[Skip Oliva]

Actually, Antonin, I suspect the Supreme Court will do everything they can to avoid taking up this matter. They wouldn't have gotten involved in 2000 had a presidential election not been at stake. I doubt the Court will want to risk further political (and legal) damage over a state recall election.

[LB]

Antonin, your forgetting that little footnote the "Supremes" stuck at the end of Bush v. Gore - (I paraphrase) this is not a precedent - that is don't use it's justification and reasoning in suits in the next election.

Now if I could just use that in arguements with my girlfreind.

[Anonymous]

Democracy would be great if it wasn't for the fuckin' elections.

[Brad S]

Once upon a time, an election was an election, if you won, you won, if you lost, you lost, but you didn't file a lawsuit. Once upon a time...

[thoreau]

Let's not glamorize the "good old days". Given some of the corruption in some of the old-time political machines (e.g. Chicago) and the disenfranchisement of a large chunk of the population in some places (e.g. southern blacks once-upon-a-time), the old elections were hardly something to emulate.

Don't get me wrong, I don't like the lawsuit one bit. But we should call for a better future rather than look through rose-colored glasses at a not-so-pretty past.

[Antonin]

Skip,

A rational choicer would agree with you and say the Supreme Court should stay out for the solid reasons you just listed.

But they're just humans, and a few key members of that court: (1) dislike the 9th Circuit and like to reverse it; (2) will be mad that the [lack of] reasoning in Bush v. Gore got thrown back in their faces so soon (and that their little footnote was properly ignored); and (3) religiously hate the Democratic Party.

I'm sticking to my prediction. "Extremism in the pursuit of liberty is no vice."

[Gene Berkman]

Today (9/15) on lp.org it is reported that the Ninth Circuit Court (same one) will take up the lawsuit by the Desert Area Libertarians which challenges the touch-screen voting machines.
They have delayed the recall because some counties still use punch cards, and must put in the touch screen machines before the election can go forward; now they are hearing a challenge to the machines.
Perhaps the court will declare that all voting methods fail to meet constitutional mandates.

[Warren]

Gene,
I believe you are right. They will declare themselves the arbiter of all elections. People will still vote but lawyers will decide outcomes.

[Antonin]

UPDATE: Glenn Reynolds says: "Unless there's some awfully compelling legal principle that's not making it into the press accounts, I predict a reversal on this one. It's just too explosive."

So much for consistency! 🙂

[Xrlq]

Comparing this case to Florida 2000 is a case of apples and oranges. The reason why Bush v. Gore was anomalous was because the U.S. Supreme Court, a federal court, was asked to second-guess a controversial ruling of a state supreme court on a question of state law. Here, a challenge would only involve asking one federal court (SC) to re-visit a ruling of a lower court (9th Cir.) on a question of federal law (14th Amend.). There's nothing unusual about the US Supreme Court taking up a case like that.

[Antonin]

Xrlg,

That's not correct. Bush v. Gore was decided on the basis of a federal equal-protection claim. Thus it's no different from the California case, as the Supreme Court always has the jurisdiction to entertain cases involving a question of federal law.

[some joe]

http://www.centerforindividualfreedom.org/legal/9th_circuit.htm

"Notably, the 9th Circuit accounted for both 30 percent of the cases (24 of 80) and 30 percent of the reversals (18 of 59) the Supreme Court decided by full written opinions this term. In addition, the 9th Circuit was responsible for more than a third (35%, or 8 of 23) of the High Court?s unanimous reversals that were issued by published opinions. Thus, on the whole, the 9th Circuit?s rulings accounted for more reversals this past term than all the state courts across the country combined and represented nearly half of the overturned judgments (45%) of the federal appellate courts."

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=33413

"The 9th circuit ? the most-overturned court on the U.S. circuit court roster ? ruled the amendment a right of states, but the more conservative 5th U.S. Circuit Court of Appeals in New Orleans has ruled that the Constitution clearly allows for individual ownership of firearms."

OK, the 9th has had some liberty-friendly rulings, but I'' leave it for the Democrat in this thread to post what they are...

[Antonin]

Joe,

Can't tell if you're being facetious or not but, to clarify, a third of the reversals means that 2/3 of the reversals were directed at other courts. It does not mean that all appeals from the 9th Circuit resulted in reversals.

In any event, when dealing with an activist Supreme Court, a reversal does not mean that the lower court was "wrong." As Justice Robert Jackson famously wrote in 1953, "We are not unaware that we are not final because we are infallible; we know that we are infallible only because we are final."

[some joe again]

"A third of the appeals, a third of the reversals. What's the problem?"
&
"So, when you say that it accounted for a third of the Supreme Court's reversals last year, I say, "So what?""

Yes, 30% of the appeals and 30% of reversals by the supreme court, but the 9th circuit only hears 17% of the federal appeals court cases (not 30%). Read the short link, its all there. So, in precise legal terms, they fuck up by a two to one ratio in comparison with other appellate courts. Apparently they accidently interpret the constitution and law differently than most other courts - or they don't believe in much of the constitution and choose to interpret it differently since they are (supposed to be) powerless to change it. Hmmm, I wonder which it is...

Now that you understand the numbers, I'm sure you folks will agree this court is out of line with mainstream non-ultra-left judicial reasoning. (LOL - you love it for precisely that reason!) Or do you think the people and courts on the left coast are pretty representative of the population as a whole? (no need to answer that one!)

[joe]

A third of the appeals, a third of the reversals. What's the problem?

[Lefty]

Well, when you have a conservative Supreme Court you might expect that they would be overturning the California circuit every chance they get.

There's a legitimate question on the gun ownership issues when the framers put it in context with militia operations. There are also legitimate issues with the feds having an interest in honest local elections.

In the ideal world we handle it locally. Sore losers in both Florida and California want to get the Supremes involved so I guess they'll reap what they sow.

If you can handle the risk of losing what you have versus the benefits you will gain, go ahead and run it through the courts. Don't cry, though, if you get beat.

It's high stakes poker. You MUST consider the almost permanent ramifications of a loss and the unintended consequences of a win.

[Antonin]

Some Joe,

Regarding your statistics, bear this in mind: The Ninth Circuit is by far the largest appellate court in the U.S., covering all federal appeals from each of the following Western states: AK, AZ, CA, HI, ID, MT, NV, OR and WA. If I'm not mistaken, it alone has more than double the number of judges than the next biggest court and hears by far more cases than any other court.

So, when you say that it accounted for a third of the Supreme Court's reversals last year, I say, "So what?"

[joe]

I was referring to the fact that the 30/30 figure means they are reversed at exactly the same rate as the Circuit Court system as a whole.

[Don]

"In the ideal world we handle it locally. Sore losers in both Florida and California want to get the Supremes involved so I guess they'll reap what they sow."

Actually, the sore loosers in both cases were the ones who went to the courst in the first place--because they lost in Florida, and because they were being recalled in California. Responding to courst with courts sounds reasonable to me--and if the local court is irresponsable (like the Florida Supremes or the 9th Circus), going above their heads is probably the best course of action. Granted, the whole thing is nasty, but the nastyness was started by those who tried to change the rules mid-game, when they saw that they were loosing.

[Don]

"There's a legitimate question on the gun ownership issues when the framers put it in context with militia operations."

I disagree, and have a solid basis for doing so. However, when the 9th upheld the Roberti-Roos "AW" ban, the lower court, which recommended that RR be struck, presented some very convincing arguments. The 9th didn't consider those arguments--most of which didn't hinge on the Second--and simply rulled the way it wanted to. Even those who don't believe that the Second protects an individual right should be concearned with the 9ths rulling on this issue, if they are at all interested in the rule of law.