It is truly unfortunate, in my view, that Professor Eastman trivializes and almost mocks the burden on the "precious right to vote" of having fewer polling places in an election, especially for the millions of working class voters for whom (unlike us well paid law professors who can take off an afternoon most days) voting on a workday is a serious logistical burden. In between rushing home from work, picking up kids, and preparing for dinner, is it any wonder that American voting turnout is so abysmal? Having a large percentage of polling places simply unavailable for this needlessly rushed special election adds a very serious burden and obstacle to the right to vote. But of course, that suits just fine the rightwing interests behind this recall power grab, who have no desire to see most poorer, heavily minority voters participate. Most countries that take democratic elections seriously devote a national holiday to them.
What is actually "hogwash" and "nonsensical," as Professor Pollock suggests (though I borrow Professor Eastman's phrasing), is the claim that some kind of reliance interest on the part of absentee voters, candidates, or state officials justify sticking to the needlessly rushed and self-inflicted Oct. 7 date. That a state has spent money preparing for an unconstitutionally timed election can hardly be a permissible defense to the constitutional challenge. That state law supposedly dictated Oct. 7 rather than March is irrelavant and entitled to no weight, because the challenge is precisely that state law violates the federal Constitution as applied in this case. As the 9th Circuit panel opinion noted (I mistakenly referred to it as Judge Thomas's earlier, based on speculation I have heard that Thomas is the author), with notable understatement, giving weight to adhering to state law seems to undermine the principles of the Supremacy Clause! Nor can the political ambitions of wannabe politicians like Arnold properly trump the public's right to vote, as preposterously suggested by Professor Bruce Ackerman in a recent op-ed -- and anyway, the investments of time and money by candidates and contributors are not "wasted" but would simply have been applied and extended to the new March election date. No candidate ever had any rightful expectation, of constitutional dimension, that a special election would take place on Oct. 7. The burden of absentee voters re-voting in March would have been trivial as compared to the burden of almost certainly disfranchising some voters on Oct. 7. (I don't think Professor Pollock's idea of hanging on to them until March would work, though it's a creative suggestion. The absentee voters would be unable to change their minds like other voters as the campaign continued to March, and it might be difficult to verify who had voted by absentee in October and thus could not vote again in March.) Indeed, the 3-judge panel opinion itself pointed out that some potential absentee voters, including some military personnel serving overseas, have already been disfranchised from the Oct. 7 election because of the rushed timing. There would have been far less risk of any such disfranchisement at the regularly scheduled March election with time for orderly planning and staffing of polling places and getting modernized voting machinery in place. What the heck is the rush? How did Oct. 7 become the sacred presumption? Except for the self-interested political ambitions behind this recall, I see no significant equities at all favoring sticking by the arbitrary Oct. 7 date. Bryan Wildenthal Thomas Jefferson School of Law -----Original Message----- From: Eastman, John [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 4:07 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc The "confusion about polling places" claim is really nonsense. California election officials change polling places frequently. Many are in private residence garages, or schools, or community centers. Every single voter in the state receives a sample ballot prior to the election with the address of the polling place printed on it. The consolidation of polling places simply means, in densely populated areas, that the current polling place might be a few blocks further away than the one that might have been used last year. And if, due to the limits of public transportation, that is too great a burden on the precious right to vote, California allows the use of absentee ballots for any reason. So I fail to see how this has equal protection implications. The argument is hogwash, and the en banc panel, 11-0, recognized it for what it was. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -----Original Message----- From: Malla Pollack [mailto:[EMAIL PROTECTED] Sent: Tuesday, September 23, 2003 4:01 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc Gregg brings up one problem that bothered me with the en banc opinion. The opinion made a big deal about the election having started already, but the point seems to me merely rhetorical. I don't understand why election officials cannot simply hold on to absentee ballots that were already mailed in. On the other hand, the en banc opinion totally ignores the panel's statement that many polling places would be unavailable in Oct.-- especially in minority areas. Malla Pollack Visiting, Univ. of Oregon, Law 541-346-1599 [EMAIL PROTECTED] ----- Original Message ----- From: "Gregg Miller" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Tuesday, September 23, 2003 3:40 PM Subject: Re: CA9 takes case in banc > 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/F656D78784F3200988256DA6 0063 > 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 > >
