September 22, 2003


 CALIFORNIA RECALL ELECTION: Ninth Circuit Rehears Recall Case (C-SPAN)

The Ninth Federal Circuit Court of Appeals sits en banc to rehear oral arguments regarding postponing the CA governor recall election.

C-SPAN just showed the hearing live--apparently the first televised proceeding ever in a Federal Court?--and it ended on a deliciously Freudian note: the ACLU attorney had the final words and was giving a ringing plea for the Court to rule on the clearest evidence of voting machine disparity ever to come before this "Circus"... He started to correct himself but got tongue-tied and one of the judges laughingly told him to quit while he was ahead.

Expect the three judge ruling to be overturned by 5pm Pacific time. Supposedly, it was televised because the rest of the 9th Circuit wanted to rehabiltate its tattered reputation and one of the 26 judges apparently asked for an en banc vote overturning the decision before the case was even officially appealed.

Center Ring at the 9th Circus: Things get even weirder in the California recall litigation. (Dahlia Lithwick, September 22, 2003, Slate)

Oral argument just ended in the en banc hearing of the ACLU challenge to the California recall election. The panel of 11 judges, selected randomly, happens to consist of some of the most conservative judges on the court. They are faced with deciding whether the punch-card ballots used in certain predominantly minority districts in California violate the constitutional guarantee of equal protection.

As I mentioned last week, this en banc panel is the 9th Circuit's best chance at saving face and avoiding yet another blistering rebuke by the Supreme Court. What's clear from argument this afternoon is that the judges are also extremely concerned about fairness in the upcoming recall election. As the discussion unfolds, it's plain they are not terribly worried about the applicability of Bush v. Gore to the facts of this case or the political or ideological return they might get from sticking it to the Supreme Court. They are worried about balancing the harms to voters: the harm of having some votes counts less than others as a result of outdated equipment versus the harm of postponing an election that Californians have sought and prepared for. [...]

Judge Johnnie Rawlinson asks [Charles Diamond, who represents Ted Costa, the man who initiated the recall ballot initiative] the $40,000 question when she wonders whether Bush v. Gore doesn't stand for the proposition that votes need to be counted equally. Says Diamond, scornfully: "When you read Bush v. Gore at 30,000 feet, like the plaintiffs have, you can find support for anything." Ouch. Diamond concludes that while one man/one vote is "an honorable goal," realism and practicality must also hold some sway.

In the 30 seconds given to him for rebuttal, Rosenbaum offers a heroic attempt to consolidate the thousand firing synapses in his brain into three cogent points about election law. He gets as far as point three before the technology seems to backfire: "This is the strongest case," he points out, "that has ever been in this circus."

"Um, circuit." He tries to correct himself, but the bench is in stitches, and one of the justices laughingly suggests that he "quit while you're ahead." "Guess who's the biggest clown," Rosenbaum laughs back, packing his papers back into his briefcase. That issue isn't exactly before the 9th Circuit either, but they'll probably decide it this week.

Posted by Orrin Judd at September 22, 2003 5:21 PM
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