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California's unprecedented recall election has generated quite a bit of press. It's also generated quite a bit of litigation. Governor Gray Davis himself, for example, has argued in the California Supreme Court that the way the recall is structured violates his right to equal protection, because he is required to get at least 50% of the vote in order to remain in office, while anyone who seeks to succeed him need only get a plurality (and a very small plurality at that, as there are 153 candidates on the ballot). However, the more important legal battle has been raging in the federal courts, where the NAACP, Southwest Voter Registration Education Project, and the ACLU have been arguing that the use of obsolete punchcard voting machines violate the equal protection clause by discriminating on the basis of race and place of residence in the counting of votes.

Southwest Voter Registration Education Project v. Shelley is essentially a sequel to a previous lawsuit — Common Cause v. Jones, 213 F. Supp. 2d 1106 — filed by most of the same plaintiffs, which resulted in a settlement by which the punchcard voting machines were "decertified" for use in elections, and were to be replaced by March 2004.

Of course, no one then expected that the first gubernatorial recall election in Californian history was going to be held in the meantime.

The announcement that over one million signatures had been collected — some by rather questionable means1 — in favour of a recall election meant that the election had to be held no later than 7 October 2003, before the punchcard voting machines used in some of California's most populous districts could be replaced.


The litigation surrounding punchcard voting and the California recall dealt with various complex legal issues, and generated 107 pages of judicial opinions alone. While a more detailed point-by-point analysis is included below, the following is a brief synopsis of the major points.

The Plaintiffs (ACLU et al.) filed suit in the Central District of California, seeking an injunction to postpone the recall election until March 2003, at which time the punchcard voting machines would have been replaced. For a number of reasons — including questions as to whether the Plaintiffs even had the right to file the suit — the District Court decided that the Plaintiffs did not have a "substantial likelihood" of success, and that the hardship that would be suffered by the State and the public as a whole if the election were postponed outweighed the Plaintiffs' interest in postponing the election until more reliable voting technology was in place. The District Court also questioned whether the issues in the current suit had not already been decided in prior litigation.

A three-judge panel of the Ninth Circuit Court of Appeals disagreed, and held that the public interest in having a fair election using reliable technology outweighed any interest in a speedy recall election. The panel also held that the Plaintiffs were likely to succeed with their substantive claims, and granted an injunction postponing the election.

The Ninth Circuit as a whole (en banc) reversed the panel's decision, holding that the violation of the Plaintiffs' rights was too "speculative" to outweigh the damage to the public as a whole that would be caused by postponing the election.

The District Court's Decision

The plaintiffs initially filed suit in the Central District of California, where they sought a preliminary injunction — a court order preventing the recall election from going forward while the suit was pending. In order to obtain a preliminary injunction, the plaintiffs had to show (1) that the injunction was necessary in order to prevent irreparable harm, (2) that they had a "substantial likelihood" of success on the basis of their equal protection and Voting Rights Act claims, and (3) that the injunction was in the public interest.

The district court denied their motion for a preliminary injunction. While assuming that the plaintiffs and the voters they represented would suffer irreparable harm — disenfranchisement — if the injunction was not granted, the district judge did not believe that they were likely to prevail on their claims. For one thing, the district judge was not convinced that the plaintiffs had the right to bring the suit at all, since it could be barred by res judicata2 due to the prior suit that they'd filed. Since they had already concluded that suit by agreeing to a March 2004 replacement date for the punchcard machines, they couldn't go back to court. Perhaps in order to prevent a dismissal based on res judicata, the current lawsuit included a new plaintiff — the NAACP; however, the district court did not consider this to be enough to overcome res judicata, since the interests of the NAACP were practically identical to those of the plaintiffs in the first lawsuit.

In the view of the district court, this was not all that stood in the way of a "substantial likelihood of success" for the groups seeking to postpone the recall. Even if res judicata did not bar the suit, it would still probably have to be dismissed because of the doctrine of "laches." Essentially, the district judge believed that the plaintiffs could not sue to postpone the recall election because they had sat on their rights for too long. "Here," reasoned the district court,

Plaintiffs waited almost two years to reassert their claims with full knowledge that, until replacement of the punch-card machines in March of 2004, other elections would take place. On the eve of this election, Plaintiffs have suddenly rediscovered 'the malfunctioning machine of our democracy' that will render this election 'a sham.' Yet Plaintiffs were apparently content with the malfunctioning machine when they faced, and presumably participated in, recent elections. Most significantly, the 2002 general elections came and went without Plaintiffs at any time asserting these claims or calling for injunctive relief.

District Court opinion at 11. Moreover, "the [Plaintiffs in the earlier suit] proposed 2004 — not 2003 — as the year for the punch-card phase-out, with full actual or constructive knowledge that special elections were a possibility." Id., at 12. In other words, the fact that there had never been a gubernatorial recall election in the entire history of California could not excuse the plaintiff's failure to predict the possibility of this one.

The district court also disagreed with the plaintiffs on the "public interest" question. Since there was the possibility of a post-election remedy to correct any unconstitutional error in the voting process, and the unlawful use of the punch-card machines "[was] being remedied pursuant to the Common Cause consent decree, the harm to the plaintiffs simply wasn't enough to outweigh the public's interest in having the election held on the date required by law. Id. at 26.

Nor was the district court particularly impressed with the merits of the plaintiffs' equal protection and Voting Rights Act claims. The court first noted that it would not apply strict scrutiny to the equal protection violation alleged by the plaintiffs, as this was not a case of "intentional geographic segregation of voters." Dist. Ct. op. at 15. Instead, a more lenient standard would apply: no equal protection violation could be found as long as any "divergences from a strict population standard [were] based on legitimate considerations incident to the effectuation of a rational state policy." Id. (quoting the U.S. Supreme Court's decision in Reynolds v. Sims, 377 U.S. 533, 579 (1964)).

This section of the district court's opinion also included one of the first major attempts by a lower court to make sense out of the Supreme Court's decision in Bush v. Gore, 531 U.S. 98 (2000), which had handed George W. Bush the presidency, holding that the lack of uniform standards for manual recounts violated the Equal Protection Clause of the Fourteenth Amendment. The first obstacle to understanding the meaning of Bush v. Gore, as the court noted, was that "the Court eschewed an explicit standard of review." Dist. Ct. Op. at 16. Without an explicit standard of review, courts are left to guess as to the severity of an infringement upon constitutionally protected interests needed to find a constitutional violation.3 Based on some language used by the Gore Court that was "evocative" of the relaxed rational basis standard — particularly the repeated reference to "arbitrary and disparate" treatment of votes — the district court guessed that this was the appropriate standard to apply. It noted, however, that "it is possible to read Bush as [...] employing an elevated standard of review," but decided that the elevated level of scrutiny was likely related to that case's "unique context4." Dist. Ct. Op. at 17. That being the case, the statistical disparity in "residual votes" — votes that could not be counted by the machines — due to the use of punchcard voting machines in heavily minority districts was not sufficiently "arbitrary" to be considered unconstitutional.

The district court also rebuffed the plaintiff's claim under § 2(a) of the Voting Rights Act, which provides that:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [...]

While this language would seem to apply to the use of punchcard voting machines primarily in minority districts — a "practice" that clearly results in an "abridgement of the right of any citizen of the United States to vote on account of race or color — the district court based its reading of § 2(a) on the accompanying § 2(b), and based its reading of § 2(b) almost exclusively on legislative history. Based on the Senate's report that accompanied the 1982 amendments to the Voting Rights Act, the district court held that § 2(b) should be construed to mean that the challenged practice was the result of historical discrimination in voting.

The Ninth Circuit Panel Decision

The ACLU and other plaintiffs appealed, and the three-judge panel disagreed with the district judge on just about every important issue. Indeed, the only thing that the district judge did right in the panel's view was to assume that the plaintiffs would suffer irreparable harm if they were not granted the injunction they requested. As for res judicata, laches, the applicable standard of review, the Equal Protection Clause, the meaning of Bush v. Gore, and the Voting Rights Act, the Ninth Circuit panel reversed the district court's rulings.

The Ninth Circuit panel held that the plaintiffs had shown a substantial likelihood of success. Unlike the district court, the three-judge panel applied a "sliding scale" approach to the questions of likelihood of success and irreparable harm. Under the continuum analysis of [Clear Channel Outdoor Inc. v. Los Angeles, 2003 WL 21947181 (9th Cir. Aug. 15, 2003)], the greater the demonstrated harm, the lesser the requirement of probability of success." Panel Op. at 16. Since even the district court did not deny that the plaintiffs had shown the possibility for severe and irreparable harm, the burden of showing a substantial likelihood of success on the merits was reduced commensurately.

In evaluating the merits of the plaintiffs' equal protection claim under Bush v. Gore, the Ninth Circuit panel took exactly the opposite approach to the one favoured by the district court. Instead of focusing on the language that suggested a "rational basis" approach (except in situations which present certain unidentified "complexities"), the panel looked to the standard that the Gore Court actually applied to hold that the lack of uniform standards for manual recounts violated the Equal Protection Clause.

The panel saw problems in punchcard voting similar to those encountered by the Supreme Court in Florida's manual recount system:

The punchcard itself is somewhat fragile. Although now just a generational memory, Americans living in the era of widespread punchcard use in business and government can hardly forget the ubiquitous admonition not to “fold, spindle, or mutilate” the card. Tabulating machines, which cannot be admonished, have a tendency to damage the cards in the mechanical counting process, causing the vote not to be counted or to be counted contrary to the voter’s intent. This creates recount problems. As Mr. Saltman observed in his 1988 study: “It is generally not possible to exactly duplicate a count obtained on pre-scored punch cards, given the inherent physical characteristics of these ballots and the variability in ballot-punching performance of real voters.”

Panel Op. at 24. The Ninth Circuit panel dedicated a great deal of time to the voluminous statistical evidence submitted by all parties to the litigation. In the three-judge panel's view, this evidence showed that there was a constitutionally significant statistical disparity in the number of votes not counted by punchard machines in comparison to newer technologies such as optical scan and touchscreen voting. While Ted Costa, who intervened in opposition to postponing the recall election, submitted studies suggesting that "affirmative choices of voters and other factors contribute to a residual vote5 rate. Plaintiffs rejoined with statistical evidence taking these factors into account, and also pointing out that affirmative choice cannot explain the differences in residual voting rates between punchcard voting and other systems." Panel Op. at 27.

Specific problems with the punchcard system noted by the panel included:

  • The fact that voters rather than machines are responsible for removing the chad, leading to chads being incompletely separated from the punchcard, leaving the chad attached to the punchcard. During the counting process, these hanging chads may be pressed back into the card, altering the voters’ intent.
  • Chads intended not to be removed may be removed during the counting process due to excessive handling, action of the counting machine, or manipulation, altering the voter’s intent.
  • Unlike other systems, there is no mechanism to prevent overvoting (i.e., voting for more than one candidate or more than the allotted number of candidates).
  • Voters are unable to examine the ballot for accuracy before leaving the polling place.
  • Manual examination of pre-scored punchcard ballots to determine the voter’s intent is highly subjective. For example, manual counters are forced to determine whether a pinprick point on a chad demonstrated an intent to register a vote.
  • The defects in the pre-scored punchcard voting system are fundamental and cannot be fixed by engineering or management alterations.

  • Panel Op. at 22 - 23.

    The panel also found fault with the district court's legal analysis, noting that much of the district court's opinion seemed founded on public policy concerns, and that the district court had placed substantial reliance on the Supreme Court's statement in Burdick v. Takushi, 504 U.S. 428, 433 (1992), that the voting process “will invariably impose some burden upon individual voters." While not entirely certain of "[t]he precise contours of the district court’s reliance on Burdick," the panel did find that the district judge got it wrong, conflating the "likelihood of success" inquiry with the "balance of hardships" and "public interest" factors. What's more, the district court didn't even apply the proper standard of review, looking at the constitutional claims through the lens of "rational basis scrutiny" rather than the strict scrutiny approach mandated by the Ninth Circuit's recent decision in Idaho Coalition United for Bears v. Cenarussa, __ F.3d ___, 2003 WL 22072191 (2003).

    However, the panel did not see much need to dwell on the issue of standard of review,

    because Plaintiffs have demonstrated a sufficient likelihood of success on the merits regardless of the standard of review. Plaintiffs have tendered sufficient evidence to demonstrate a likelihood of success in establishing that there is no rational basis for using voting systems that have been decertified as “unacceptable” in some counties and not others. The State is not leaving pre-scored punchcard systems in place indefinitely because it cannot afford to update them, nor does it deem pre-scored punchcard voting systems acceptable for use in California elections. Rather, the State has conceded the deficiencies in the systems and agreed to remedy the deficiencies by the next statewide election.

    Nor was the Ninth Circuit panel persuaded by the district court's intimation that the ACLU plaintiffs' suit was barred by res judicata and laches.

    In order for the defendants to obtain a dismissal based on res judicata, they would have to show "“(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” Panel Op. at 33.

    In order to show an "identity of claims," a defendant must show that:

    (1) [...] rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action;
    (2) [...] substantially the same evidence is presented in the two actions;
    (3) [...] the two suits involve infringement of the same right; and
    (4) [...] the two suits arise out of the same transactional nucleus of facts.

    In the panel's opinion, the defendant had failed to show the presence of any of the factors but one. As to the first factor — whether rights created by the prior judgment would be destroyed or impaired by the second suit — they believed that the effect of the current suit would be to "vindicate" rather than "impair" any rights created in the Common Cause suit. Panel Op. at 34. Since the evidence needed to enjoin an election differed substantially from that needed to show that certain voting machines were constitutionally infirm, the panel did not consider the second factor to be satisfied. Similarly, since the Common Cause suit concerned punchcard voting machines in general and the present action was directed at the recall election in particular, the panel did not consider the case to revolve around the same "transactional nucleus of facts" as the prior litigation.

    The only factor in the analysis that favoured the defendant's claim of res judicata was the third factor: the rights being defended in the current suit — the right to vote and to have one's vote counted — were the same as those being vindicated in the prior Common Cause suit.

    Similarly, the panel disagreed with the district court on the question of whether the NAACP was in privity with the other plaintiffs — that is, whether there was a "special relationship" between the NAACP and the other parties such that the NAACP should be bound by the Common Cause litigation. While granting that the NAACP, in the abstract, had a similar general interest to that of the parties to the Common Cause case — that of ensuring that minorities would not be disenfranchised by the punchcard voting systems — the panel held that considering the NAACP to be "in privity" with the Common Cause plaintiffs would essentially require every minority citizen of California whose vote might not be counted by a punchcard machine to either join the Common Cause suit or forever relinquish the right to litigate their voting rights claim:

    Ordinary litigation does not automatically become a mandatory class action for purposes of issue preclusion, binding all people of color in California and the many groups of which they are a part merely by virtue of the fact that public interest organizations who share some of their abstract interests in ending voting discrimination are involved. Indeed, the plaintiffs in Common Cause I did not even purport to represent all people of color in California. They only purported to represent their members. There is no showing that all members of the NAACP who are voters in California are also members of other Common Cause Plaintiff groups. Yet the rule as applied by the district court would bind them to the Common Cause Plaintiffs’ litigation strategies and choices, implying a burden of intervention on all people of color in California.

    Panel Op. at 40.

    Finally, the panel held that the policies underlying the doctrine of res judicata — promoting the finality of judgments and avoiding piecemeal litigation — would not be served by applying the doctrine to the present litigation. The situation with which the plaintiffs in the present case were confronted, an unprecedented gubernatorial recall election, was hypothetical at best at the time of the Common Cause litigation. Indeed, the plaintiffs most likely could not have even litigated claims related to a recall election at the time because nothing indicated that there was going to be such an election. Requiring the Common Cause plaintiffs to litigate the issue of a possible recall election would put them in a classic Catch-22: prematurely litigate the issue of a possible recall, which will almost certainly be dismissed as too uncertain and hypothetical6, or face dismissal of claims related to an imminent recall election for failure to raise them in prior litigation.

    The panel also took a dim view of the district court's holding that the plaintiffs' suit was probably barred by laches. Noting parenthetically that laches is an affirmative defence which must be raised by the defendant (and wasn't in this case), the panel pointed out that laches only applies when the plaintiff knowingly sits on rights of which it actually is aware.

    To have anticipated the events at hand, the Plaintiffs would have necessarily had to have impressive prophetic powers. Even so, if Plaintiffs had filed an action to enjoin the special election based on their hunch that such an election would be held, it is doubtful that any court would have countenanced it. It plainly was not ripe. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted).

    Panel Op. at 48. Laches also requires there to be some prejudice — some disadvantage — to the defendant arising out of the plaintiff's failure to assert its rights in a more timely fashion. "However, in assessing prejudice it would be an odd result for a party successfully to be able to claim prejudice resulting from its own initiation of events. In any case, the prejudice to the Secretary of State [Defendant Shelley] is posed by the existence of the lawsuit, not delay in asserting it; therefore, no prejudice lies within the meaning of the doctrine of laches." Id. Having thus torn practically every bit of the district court's reasoning on the subject to shreds, the panel held that the ACLU plaintiffs had a "substantial likelihood of success on the merits" — the first factor in determining whether the grant a preliminary injunction.

    After noting briefly their agreement with the district court's assumption that the harm faced by the plaintiffs — not having their vote counted in the recall election — was irreparable, the panel turned to the question of the balance of hardships: would the State face greater harm from a postponement of the recall than the Plaintiffs would from having their votes discarded?

    The panel first discussed one of the bigger gaffes in the district court's analysis of the balance of hardships. The "balance of hardships" — hardship to plaintiff compared to hardship to defendant — and the "public interest" — the interests of the public at large — are two separate factors, which each need to be considered separately. The distinction was apparently lost on the district court, which considered the "public interest" question as part of the "balance of hardships" inquiry. In the panel's opinion, the balance of hardships was not even a close question:

    As we have observed, the harm faced by the Plaintiffs is irreparable. The question then is the relative burden on the Secretary of State. To this, there are different answers. The burden of canceling the election entirely at this late hour will involve expense to the State. However, this is the inverse of the usual election situation. Normally, enjoining an election would require that a special election be held later, at great financial cost. But here, the election Plaintiffs seek to enjoin is itself a special election, and if enjoined, voting would occur at a regularly scheduled election. Thus, the great difference in cost between regularly scheduled and special elections is not as significant a factor as in the usual election case. Nevertheless, there is undoubtedly a burden and expense to the State in canceling the election, although the Secretary of State chose not to quantify this cost in his submissions.

    However, simply postponing a vote on the initiatives does not pose a significant extra burden on the Secretary of State. As we have noted, the Secretary of State originally set March 2, 2004 as the date for inclusion of the propositions on a statewide ballot. That is a regularly scheduled statewide election, so the extra burden of adding the initiative to the ballot would be insignificant. Further, the Secretary of State has already mailed information to the voters on the initiatives, so no additional expense would be incurred.

    Thus, as to the question of voting on the initiatives, the balance of hardships tips sharply in favor of granting relief to the Plaintiffs. As to the gubernatorial recall, the balance of hardships is a closer question, but, in our judgment, slightly favors the Plaintiffs.

    Panel Op. at 50 - 51.

    The panel also sharply disagreed with the district court's understanding of the public interest. While the district court seemed to consider the public interest in having the State's election laws — which mandated that the recall election be held no later than October 2003 — to be paramount, the three-judge panel noted that this would have the effect of undermining the supremacy of the Equal Protection Clause.

    Indeed, had the view of the Secretary of State that state law is the only relevant consideration been the rule, the Supreme Court could not have reached the conclusions it did in Reynolds, Gray, Harper, and Bush. Reynolds required almost all states to redraw their electoral boundaries for electing members of state legislatures in compliance with one-man, one-vote principles. Gray struck down a state’s established voting system. Harper found a state-established poll tax unconstitutional. Most recently, in Bush, the Supreme Court found that a state’s method of counting votes offended the Constitution. In all these cases, and in many more, the public interest was measured in broader terms that were not confined to resort to state law alone.

    The appropriate examination of the public interest in this context will instead place heavy weight on the principles underlying state law. Those principles of fair and efficient self governance belong in a court’s assessment of the public interest regardless of the presence of state election laws motivated by them. State election law can merely highlight for a court which of those democratic principles the people of a State hold in particularly high regard.

    Panel Op. at 54 - 55. Ultimately, the panel concluded that the public interest in fairness and the appearance of fairness in the electoral system outweighed any public interest in having the election held in October 2003 rather than in March 2004. Accordingly, the panel reversed the district court's denial of a preliminary injunction.

    The Ninth Circuit's En Banc Opinion

    As sometimes happens in particularly important cases — or cases applying new or unclear rules of law — the Ninth Circuit Court of Appeals voted to re-hear the case en banc, i.e. to have the full court decide whether the three-judge panel's disposition of the case was correct. After a spirited oral argument, which included some intense verbal sparring between Judge Alex Kozinski — known, among other things, as the resident humourist of the Ninth Circuit — and Charles Diamond, counsel for the intervenor, Ted Costa, the en banc court decided to reverse the decision of the three-judge panel.

    In a mercifully brief opinion — compared to the 29 pages of the district court's opinion and the 65-page panel opinion — the en banc court primarily took issue with the standard of review applied by the panel. While the panel undertook an exhaustive (if not exhausting) review of the underlying merits of the Plaintiffs' equal protection claims, the en banc court held that their review was limited to the question of whether the district judge "abused his discretion" in denying the injunction requested by the Plaintiffs.

    The three-judge panel had engaged in what is known as "de novo review." "De novo" means "anew," and essentially means that the conclusions reached by the lower court are examined from scratch. The appellate court simply decides whether it agrees or not with the lower court's opinion. The en banc court agreed that this was the proper standard, but only if the district court had applied the wrong legal standard or otherwise got the underlying law wrong. Since the en banc court was in substantial agreement with the law as applied by the district court, they did not examine the legal merits of the Plaintiffs' claims; instead, the court limited itself to determining whether the denial of a preliminary injunction was an abuse of discretion.

    In deciding whether the district judge abused his discretion in denying the requested injunction, the Ninth Circuit did not discuss res judicata and laches at all, despite the lengthy discussions of those issues in both the district court and panel opinions. Instead, the court focussed on the "balance of hardships" and "public interest" inquiries. While not openly disagreeing with the panel's statement that the district court "conflat[ed]" the two prongs of the analysis, the en banc court itself merged them, noting that "In this case, hardship falls not only upon the putative defendant, the California Secretary of State, but on all the citizens of California, because this case concerns a statewide election. The public interest is significantly affected." En Banc Op. at 9.

    The Ninth Circuit took a contrasting view of the balance of the hardships/public interest inquiry, seeing it as a conflict between the "speculative" constitutional injury faced by the Plaintiffs and the hardship that would be suffered by the State and the public as a whole:

    If the recall election scheduled for October 7, 2003, is enjoined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date. Time and money have been spent to prepare voter information pamphlets and sample ballots, mail absentee ballots, and hire and train poll workers. Public officials have been forced to divert their attention from their official duties in order to campaign. Candidates have crafted their message to the voters in light of the originally-announced schedule and calibrated their message to the political and social environment of the time. They have raised funds under current campaign contribution laws and expended them in reliance on the election’s taking place on October 7. Potential voters have given their attention to the candidates’ messages and prepared themselves to vote. Hundreds of thousands of absentee voters have already cast their votes in similar reliance upon the election going forward on the timetable announced by the state. These investments of time, money, and the exercise of citizenship rights cannot be returned. If the election is postponed, citizens who have already cast a vote will effectively be told that the vote does not count and that they must vote again. In short, the status quo that existed at the time the election was set cannot be restored because this election has already begun.

    En Banc Op. at 10 - 11. Particularly striking is the difference of opinion between the en banc court and the panel with regard to the absentee ballots. While the en banc court sees the postponement of the election as telling "citizens who have already cast a vote [...] that the vote does not count and that they must vote again," Id., the panel had noted that:

    Further, many members of the armed forces and California National Guard members did not fill out absentee ballot requests because they did not expect to be overseas for this length of time and did not anticipate a special election. A short postponement of the recall election will serve the public interest by permitting California men and women who are serving our country overseas and who did not anticipate an October election more time to request and submit absentee ballots, thus allowing them to enjoy one of the fundamental rights for which they put themselves in harm’s way – the right to vote.

    In view of the "speculative" nature of the harm feared by the plaintiffs, the en banc court ultimately vacated the panel's injunction and allowed the recall to proceed as planned.

    Panel Op. at 57 - 58.


    In the end, little has changed. The recall election will still be held on 7 October, and the Californian people will have to make the traditional choice between being governed by porn stars, bodybuilders, and the cast of Diff'rent Strokes. What can we take away from this exercise? A few things. First, voting rights remains one of the most contentious areas of constitutional law: there is still much dispute as to how to resolve the inherent tension between the States' right to great leeway in the configuration of their own electoral schemes and the federal constitutional right to have one's vote counted and valued equally to others' votes. Southwest Voter Registration Education Project does not promise to be the final resolution of these tensions, if anything is capable of resolving them. Second, the Ninth Circuit remains one of the most fractious appellate courts in the federal system. Third, you can't predict the court's decision based on oral argument. Counsel for the State of California and the Intervenor (who opposed postponement of the election) came under very heavy fire during the en banc oral arguments. Almost every element of their submissions before the court was ripped to shreds by Judge Kozinski (and, occasionally, others). Yet, in the end, the Court held for the State of California. Last, but not least, we have learned that nobody has sussed out what the hell to make of Bush v. Gore.

    1The petition filed by Governor Gray Davis in the California Supreme Court alleged that the recall petitions were circulated — contrary to state law — by paid petition circulators from out of state, and that the certification process was rushed, preventing adequate verification of the petitions.

    2Under the doctrine of res judicata, plaintiffs are not allowed to file a second law suit to litigate claims they could have litigated in an earlier suit.

    3This is symptomatic of the underlying problem in the Court's decision in Gore — the justices were left to write the opinions without their law clerks, in very short order, lending the decisions a certain haphazard quality.

    4The reference to the "unique context" of Bush v. Gore alludes to another of the anomalies of that decision, namely the Gore Court's statement that "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," without ever saying exactly what these "complexities" were or why they required a significant deviation from the Court's prior voting rights jurisprudence.

    5Residual vote rate refers to the percentage of votes cast that cannot be counted by the machines.

    6The requirement that violations of rights complained of in a lawsuit be real or imminent rather than theoretical is known as the "ripeness doctrine," and is rooted in Art. III of the U.S. Constitution.

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