I don't mean to dwell on the obvious, but it is likely that many of the apparent weaknesses of the opinion are due to the fact that it is unanimous. What we see is the lowest common denominator that 11 judges of widely differing ideologies could agree on.
As to the Greg's point regarding the balancing of burdens, I think the en banc court's more powerful argument is not that of financial expense, but that of the need for finality and closure in electoral processes. The search for complete or near-complete equality in ballot technology could result in lengthy postponements of numerous elections. Such postponements could undermine the right to vote as much or more so than defective technology. After all, the purpose of voting is not only to have your vote "count" but to ensure that the electorate has the opportunity to change its leaders at specified time periods. Moreover, the interest in swift finality is particularly strong in the case of a recall, the whole point of which is to allow voters the opportunity to rid themselves of an allegedly harmful incumbent sooner rather than later. On Tue, 23 Sep 2003, Gregg Miller wrote: > Perhaps fascile wasn't the most appropriate word (I know I misspelled it - > that was a typing error). Perhaps disingenuous is more what I am thinking. > I have a hard time believing these judges would let economic interests > prevail over the right to vote, or that the burden of having to vote again > is somehow greater than the danger one's vote won't count at all. > > -----Original Message----- > From: Gregg Miller [mailto:[EMAIL PROTECTED] > Sent: Tuesday, September 23, 2003 3:28 PM > To: [EMAIL PROTECTED] > Subject: Re: CA9 takes case in banc > > > So, it's probably just me, but it seems as if the 9th Circuit produced a > particularly facile analysis of the balancing of the interests in the en > banc opinion. Could it be they are daring the Supremes to reverse them? > > -----Original Message----- > From: Scarberry, Mark [mailto:[EMAIL PROTECTED] > Sent: Friday, September 19, 2003 12:46 PM > To: [EMAIL PROTECTED] > Subject: Re: CA9 takes case in banc > > > No, I don't think so, because the mandate has not issued (or effectively was > recalled). In the absence of issuance of the mandate, the panel's opinion > has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16, > the mandate is not to issue except on further order of the court (as I noted > in an earlier post). > > Per the court's web site the hearing is set for Monday 1pm Pacific Time. The > en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski, > O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman > and Rawlinson. > > See http://www.ca9.uscourts.gov. Click on "En Banc Court Information." > > Mark S. Scarberry > Pepperdine University School of Law > > > -----Original Message----- > From: Samuel Issacharoff [mailto:[EMAIL PROTECTED] > Sent: Friday, September 19, 2003 12:43 PM > To: [EMAIL PROTECTED] > Subject: Re: CA9 takes case in banc > > I notice the order says that the decision is not to be cited as precedent > to not only the Ninth Circuit, but any district court in the Ninth Circuit. > Under Ninth Circuit procedure, does this include not being "cited" to the > district court that refused to stay the election? If so, is this the > functional equivalent of lifting the stay? > > ****************************************** > Samuel Issacharoff > Harold R. Medina Professor in Procedural Jurisprudence > Columbia Law School > 212-854-2527 > 212-854-7946 (fax) > > > > Edward A Hartnett > <[EMAIL PROTECTED]> To: > [EMAIL PROTECTED] > Sent by: Discussion cc: > list for con law Subject: CA9 takes case in > banc > professors > <[EMAIL PROTECTED] > v.ucla.edu> > > > 09/19/2003 03:21 PM > Please respond to > Discussion list for > con law professors > > > > > > > The order taking the case in banc is available at > > http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA60063 > 06FE/$file/recall_enbanc.pdf?openelement > > > I notice that the order does not vacate the panel decision, but rather > decrees that it not be cited as precedent in the Ninth Circuit. Is that > the Ninth Circuit's usual practice? My understanding was that most courts > of appeals vacated the panel decision upon deciding to rehear the case in > banc, reflecting the view that the court of appeals (whether held by a > panel or sitting in banc) is a unitary court exercising appellate review > over the district court (or administrative agency). An alternative view > might be that the in banc court exercises appellate jurisdiction over the > panel. The difference in how the in banc court is conceptualized can > matter if the in banc court divides evenly, but thankfully that should not > be an issue with an eleven member "in banc panel." > > > Ed Hartnett > Seton Hall >
