L.A. Times opeds Bruce Cain writes "Do Better Next Time*The state's recall laws clearly could use a little tweaking." Bob Stern and Tracy Westen of the Center for Governmental Stuides offer "Politics as It Was Meant to Be*For once, campaign cash is taking a back seat to media and voter interest.." Kevin Starr offers "Politics, Wired*Recall may be dizzying, but it portends a revolution in governance."

"Flake looks for a local committee to help" See this article in the Arizona Republic, which begins: "Is Rep. Jeff Flake, R-Ariz., dropping hints about how he can get around a recent Federal Election Commission opinion limiting how much money he can raise for his initiative campaign to repeal Arizona's system of publicly funding political elections?"

Analysis of government opposition to TRO in ACLU punchcard suit I have just had a chance to read and analyze the government's opposition to the TRO in the ACLU punchcard suit. (The complaint is here and excerpts from the government opposition are in the post immediately below this one. The first amended complaint and the ACLU's points and authorities supporting the TRO and not yet posted anywhere.)

The opposition is most remarkable for what it does not do. The government concedes that punchcard voting is "antiquated," but states only summarily argues that the use of punch cards in the recall election is unconstitutional. Its main argument against the TRO is the procedural point that the consent decree binding on the parties in the earlier Common Cause v. Jones case (decertifying punch cards beginning with the March 2004 election) should preclude this litigation---even though different plaintiffs were involved with the two suits. (The argument is that the parties' interests are closely enough aligned that should preclude this additional suit.) The government also points to education efforts that the Secretary of State promises to make about the proper way to vote a punch card ballot.

The government hardly offers a substantive argument under either the facts or the law. The closest the government seems to come to a substantive analysis of the facts is its point that since the consent decree, "the primary and general elections were held in 2002, and various local elections have been held in the six counties that use the [punchcard] machines. In addition a well-publicized recall election took place in the City of South Gate in January 2003, without objection regarding the use of the [punchcard] machines."

Of course, these elections are very different from the recall election. Here, we likely have a much closer election (because of the large number of candidates and the plurality rule); we have consolidation of precincts in Los Angeles from 5,000 to 1,800; and we have a very long ballot. Put all those factors together, and the use of punch card voting raises serious equal protection concerns. It will take longer to vote ballots (will more than a single punch card ballot be required for each voter to accommodate the 135 candidates); voters may be confused as to where to go to vote; lines may be long because of precinct consolidation; and there is the conceded higher error rate with punch card ballots. In short, it is much more likely in places like Los Angeles than other counties---counties not using punch cards or consolidating precincts---that voters will cast a vote that actually counts.

None of those factors were present in the 2002 elections. In South Gate, the entire jurisdiction used punch card votes (so there was no disparate treatment across groups of voters) and the election was lopsided. Recall succeeded of four elected officials, by margins of about 80% to 20%; there were similarly lopsided votes for replacement candidates (and few replacement candidates on the ballot).

On the law, the government fails to even mention, much less distinguish, the Black v. McGuffage case, a federal district court case holding that the use of punch card voting in some Illinois jurisdictions but not others in a statewide election violates equal protection. Black relied on Bush v. Gore, another case not even mentioned by the government. Nor does the government brief so much as mention the Section 2 voting rights act claim of the plaintiffs---a claim which is at least plausible, given the disparate impact of the election on minorities, who tend to live in counties using punchcards. See Stephen Ansolabehere, Voting Machines, Race, and Equal Protection, 1 Election Law Journal 61 (2002).

The ACLU has a strong case. If the court reaches the merits at the TRO hearing on Monday, it will be interesting to see what the government will offer by way of response.

UPDATE: A few readers have suggested to me upon reading these comments that I believe the government somehow intentionally made weak arguments here. I don't mean to suggest that and I don't believe it. The government has been pretty aggressive in fighting the other suits, particularly Davis's suit in the California Supreme Court. I just think they have made a strategic decision to fight this on technical grounds (this suit is precluded by earlier suit) rather than fighting it on substance, where before the federal district court judge here perhaps they think they'd lose.

Excerpts from Government Opposition to TRO in ACLU Punchcard suit

2. Plaintiffs Cannot Demonstrate A Likelihood Of Success On The Merits
The First Amended Complaint is simply an attempt to collaterally attack the
consent decree entered into between plaintiffs and the Secretary of State in 2002. (Pl.
Ex. 5.) On February 19, 2002, when Judge Wilson signed the order requiring the
parties to lodge a consent decree within seven days of that date,4/ plaintiffs were well
aware of the fact that the PPC machines would be used in statewide elections
occurring before March 2004. They were also aware that, prior to March 1, 2004,
there would likely be a number of local elections in the counties that used the PPC
machines. Plaintiffs chose not protest the use of the punchcard systems for those
local elections, nor did they protest when the machines were used for the recall of
three city council members and the city treasurer in the City of South Gate, a
predominantly Latino community in Los Angeles County, in early 2002. Yet, now they
seek to interfere with the People’s reserved right of the recall that is expressly provided
for in the California Constitution,5/ in disregard of the fact that the consent decree was
reduced to a judgment, which plaintiffs did not appeal, and which they are now
precluded from attacking by principles of res judicata. (Rafferty v. City of
Youngstown, 54 F.3d 278, 282 (6th Cir. 1995).)

It appears that plaintiffs filed an amended complaint to add the NAACP as a party
plaintiff to avoid the application of res judicata principles by adding as a plaintiff an
entity that was not a party to the consent decree, on the theory that one who was not
a party to a judgment in a prior action is not bound by it. However, that theory does
not apply when the absent party’s interests were adequately represented in the prior
action. This was the holding in Rafferty, supra, in which white police officers were
held to be bound by a consent decree entered into in a case in which their collective
bargaining representative had been granted leave to intervene as a party-defendant.
The officers’ efforts to attack the consent decree in a separate action was denied on
the ground that they had been adequately represented in the earlier action and therefore
did not have standing to raise a collateral attack on the consent decree. (Ibid.)
In the present case, the NAACP is identified as the nation’s oldest and largest
civil rights organization with a mission to secure and protect the civil rights of people
of color, including the voting rights of African Americans. (FAC, & 12.) The
Common Cause complaint identified plaintiffs Common Cause, SCLC and the
American Federation of Labor and Congress of Industrial Organizations (AAFL-CIO)
as organizations whose members include African Americans. Common Cause states
its goals are to promote fair and honest elections. (Pl. Ex. 1, & 8.) The SCLC stated
that it has always worked to promote the full equality of African Americans in all
aspects of American life, including voting, elections and political participation. (Pl. Ex.
1, & 9.) The AFL-CIO alleged that one of its objectives is to encourage workers to
register and vote. (Pl. Ex. 1, & 12.)
All three entities alleged that their members are adversely affected by use of
PPC voting machines. In addition, two of the named individual plaintiffs in Common
Cause were identified as being African Americans. (Pl. Ex. 1, && 13, 16.) It cannot
be disputed, therefore, that the interests of African American voters were adequately
represented in the Common Cause action. Thus, the addition of the NAACP as a
plaintiff in the instant action does not preclude application of the principle of res
judicata to that plaintiff, as well as to the others, to prevent them now from attacking
the provisions of the consent decree. Moreover, as this Court has already observed,
”[s]tipulations voluntarily entered by the parties are binding.” (Common Cause, et al.
v. Jones, 213 F.Supp.2d 1110, 1112 (C.D. Calif. 2002.)
Although plaintiffs are not so bold as to suggest that the effective date of the
decertification of the PPC voting machines now be moved up to October 1, 2003, they
nonetheless seek the same result by asking the court to issue a preliminary injunction
that would be the functional equivalent: move the election to a date after March 1,
2004. The Court should reject this attempt to avoid the terms of the consent decree.
As was said by a three-judge court convened to hear a challenge by a number of
Latino voters to the legality of the 2000 redistricting plan in California, “enjoining an
election is an ’extraordinary remedy’ involving a far-reaching power [citation] which
is almost never exercised by federal courts prior to a determination on the merits, other
than in cases involving a violation of the preclearance requirement of ' 5 of the Voting
Rights Act.” (Cano v. Davis, 191 F.Supp.2d 1135, 1137 (C.D. Cal. 2001).) The
court denied plaintiffs’ application for a temporary restraining order. (Id. at 1139.)
In fact, defendant is not aware of any cases that have allowed an election to be delayed
in the face of mandatory statutory and constitutional provisions specifying the time
frame for the election. To allow that to happen here, in the face of a consent decree,
which plaintiffs stipulated to and are bound by, would violate basic principles of
equity.
Finally, the fact that plaintiffs seek to move the election to a date after March
1, 2004, can only be construed as a request for a mandatory injunction. As stated by
the court in the Stanley case, where a party seeks mandatory preliminary relief that
goes ”well beyond maintaining the status quo pendente lite, courts should be
extremely cautious about issuing a preliminary injunction.” (Stanley, supra, 13 F.3d
at 1319.) Plaintiff Stanley, the women’s basketball coach at U.S.C., sought an
injunction requiring the university to renew her expired contract and pay her more than
she had made under the contract. (Stanley, supra, 13 F3d. at 1320.) As the court
noted, such injunctions are ”particularly disfavored. [Citation.] When a mandatory
preliminary injunction is requested, the district court should deny such relief, ‘unless
the facts and law clearly favor the moving party.’” (Ibid.) Given the preclusive effect
of the consent decree, neither the facts nor the law clearly favor the plaintiffs.
Because a showing of probable success on the merits is an element of each one of the
various tests for the issuance of a TRO or preliminary injunction, and because
plaintiffs cannot make that showing, the Court should deny the requested relief.

Findlaw recall litigation page Findlaw has set up a special web page devoted to the recall here. It promises to post additional documents in the near future. Looks like a very valuable resource.

"The Recall as Reform Politics" Bob Bauer offers this oped in the Washington Post.

"California recall adds fuel to electronic-voting debate" See this A.P. report from Thursday.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com