Since I don't believe that Bush v. Gore was correctly decided or "should be taken seriously" in the sense of being a widely applicable precedent, this part of Bryan's argument is better directed at others.
As to his other arguments, there is no inconsistency between the recall and an insistence on finality and closure. The "specified time periods" I referred to are those set up by state law. The recall procedure is itself a part of state law and allows removal of state officials at a specified time set up by law. Bryan may be right to oppose the recall on policy grounds, but that does not make the state's interest in holding a recall on time any less than its interest in any other election. If California held elections every 2 years despite strong policy arguments for holding them every 4 years instead, its interest in holding elections on time would have exactly the same significance in law. Indeed, a delay in a recall may be even more damaging because the whole point of a recall is to remove an incumbent perceived as dangerous or incompetent quickly. The logic of the panel decision would allow postponement of an election any time there was a statistically significant inequality in ballot technology across districts. That is, it would allow such postponement in virtually all statewide elections ever held (I do not find persuasive the panel's attempt to distinguish recalls from other elections in this regard). This kind of judicial power run amok seems to me a much greater danger to the right to vote than the fact that some voters have a greater chance of having their votes miscounted than others, while the actual chance of error remains under 1% in all cases. Those who opposed Bush v. Gore, as I did, should be happy that the en banc court beat back this massive extension of that dubious decision. Ilya Somin On Tue, 23 Sep 2003, Bryan Wildenthal wrote: > I have resisted commenting on the California recall litigation, but this is > really too much. I cannot let pass the assertion that "the need for > finality and closure in electoral processes" somehow should shield the > recall from legal challenges. I'm not sure what it looks like from Harvard > Yard, but as a California voter myself, I find the recall itself a gross > perversion of the public's interest in "finality and closure of elections," > and the recall itself fundamentally endangers the public's "opportunity to > change its leaders at specified time periods." We had such an opportunity > last November. That a disgruntled minority of my notoriously inattentive > and politically tuned-out fellow California citizens (probably including > many who, unlike me, didn't even bother to vote last November) signed > petitions demanding a recall vote does not create a very weighty "public > interest" in holding this recall on Oct. 7 rather than March. At least as > balanced against the serious threatened harms to constitutional equal > protection rights, any such interest is vanishingly slight. When weighed > against the obvious inequities of using inferior vote-counting machines in > almost half the state (a half that is disproportionately racial minorities > who disproportionately oppose the transparent rightwing power grab behind > this recall) the equities clearly favor postponement. > > I really don't see how those who support going ahead with the recall despite > the very serious constitutional objections asserted against it, can argue > with anything other than a very red face that Bush v Gore could possibly > have been correct or should be taken seriously. The 9th circuit panel > decision was riveted most convincingly to a perfectly reasonable application > of Bush v Gore (if such is possible). But apparently the principles behind > Bush v Gore are only applicable in the case of an election process that > appears to threaten Republican political interests. > > I mean really! It's OK for the US Supreme Court to stop a presidential vote > recount and tip the decision in a national presidential election, but it > would be an intolerable disruption merely to POSTPONE for a few months (TO a > regularly scheduled election date!) a state recall election that no one (to > begin with) had any rightful expectation would take place at all, much less > as soon as Oct. 7? > > Conservatives screamed bloody murder in Florida 2000 that the Florida courts > and officials were violating state law in the recount. Funny, I've heard > few if any complaints from conservatives about how rushing the ballot > propositions onto the Oct. 7 recall ballot (after they had been scheduled > more than a year before to appear on the March 2004 ballot) blatantly > violates the notice and deadline requirements for circulating the ballot > pamphlets in advance of elections, under California state law. California > law says ballot propositions should be put on the next "available" election > ballot. Why was Oct. 7 ever deemed "available" when it was too late to > comply with state law deadlines? Judge Thomas's 9th circuit panel opinion > convincingly explained that Secretary of State Shelley violated state law at > least as to the ballot propositions. Even some of the en banc judges in > oral argument Monday seemed to concede that virtually no reason at all had > been given why the ballot propositions needed to be rushed onto the Oct. 7 > ballot. They wouldn't even take effect, if passed, until January 2005! > > Bryan Wildenthal > Thomas Jefferson School of Law > > -----Original Message----- > From: Ilya Somin [mailto:[EMAIL PROTECTED] > Sent: Tuesday, September 23, 2003 4:15 PM > To: [EMAIL PROTECTED] > Subject: Re: CA9 takes case in banc > > > 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 > > >
