Friday could be a big day for recall litigation On Friday, Judge Vogel is holding a hearing on the section 5 case involving Monterey county. There's no doubt from reading his earlier orders (available at the Findlaw recall page) that he feels bound to prevent Monterey county from taking any further steps in the recall process (including sending out absentee ballots) until the Department of Justice in Washington D.C. grants preclearance. We are getting very close to the time that such ballots need to go out (indeed, the time for overseas ballots to go out may have already passed). We could see the judge enjoin the entire election until preclearance is granted.
I have heard another possibility. One of the challenges in Monterey county relates to that county's decision to consolidate precincts. This is being done to save money and labor, but the allegation is that the consolidation will put minority voters in a worse position than they would have been in before consolidation. I heard that the county might offer to reverse itself on consolidation. That still leaves preclearance issues related to the inclusion on the ballot of Proposition 54 (the "racial privacy initiative"). I do not know if, assuming the consolidation issue could go away, whether the county could print ballots for the recall, but leave off the Proposition 54 question, and what that would mean for the rest of the state. Presumably, if Monterey cannot vote on Proposition 54 at this election, no part of California can.

"Corporate donations defended; Schwarzenegger says gifts won't sway his actions" The Sacramento Bee offers this report. The newspaper also features "Pollsters Foresee Record Turnout."

"Texas Legislature Adjourns Special Session; Governor to Call Members Back a 3rd Time to Force Vote on GOP Redistricting Plan" The Washington Post offers this report.

Why no preclearance challenge in Yuba? A.P. offers this report, which explains why.

ACLU files appeal in Ninth Circuit over the selective use of punch card ballots in recall election As promised, the ACLU has appealed the decision of a federal district court's order denying a preliminary injunction to delay the recall election until elections officials could insure that punch card ballots would not be used (the latest that this would be is March 2004, when, pursuant to a consent decree the state has agreed to eliminate the use of punch cards). Here is the ACLU's summary of the argument from their brief (footnotes omitted)

There are three questions on this appeal. First, is the plaintiffs’ suit barred by res judicata or laches? The district court discussed this question but expressly declined to decide it. Order, ER 208, 209. Neither res judicata nor laches applies here. Res judicata does not apply because plaintiffs are bringing a new and distinct claim that was not part of, and could not have been part of, the earlier suit. The prior judgment required defendant to replace all punchcards by March 2004, and this action in no way disturbs that judgment. Res judicata “prevents a party from litigating in a subsequent action any matter that was a part of the same claim or cause of action adjudicated in a prior action. These rules preclude from litigation any part of the claim that might have been litigated.” Larry Teply & Ralph Whitten, Civil Procedure 872 (1994) (emphasis in original); Western Radio Serve. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997). Plainly, an equal protection and Voting Rights action predicated on the extraordinary election subsequently scheduled for October 2003 – a point in time at which some but not all parts of California would have been ready to count ballots through methods more accurate by far than the punchcard systems that would then have been replaced in some counties but not yet in others – was not, because it could not possibly have been, part of the earlier litigation. Even if the parties to that litigation are now to be credited with remarkable clairvoyance, no Article III court would have been empowered at that point in time to render an authoritative resolution of a potential future dispute that had not yet ripened into an actual case or controversy. More important still, the unique characteristics of the recall election raise the identified deficiencies of punchcard systems to a qualitatively different level, presenting an altogether new claim under equal protection and the Voting Rights Act.
Second, did the district court err in denying plaintiffs’ request for a preliminary injunction? The court correctly acknowledged that plaintiffs will be irreparably injured in the absence of preliminary injunctive relief, because there is no “effective remedy that would be available to Plaintiffs after the votes have been cast.” Order, ER 220. However, the court misapprehended the nature of plaintiffs’ constitutional claim, misapplied the Voting Rights Act, and seemingly failed to grasp the supremacy of substantive federal constitutional and statutory dictates over a procedural state rule governing timing. In elevating a state constitutional provision establishing the time periods for holding a recall election after certification of petitions above the core federal demand of equal treatment under the law, the district court plainly abused its discretion.
Third, did the district court err in declining to give separate consideration to plaintiffs’ claims with respect to the vote on the ballot initiatives? Whatever the balance of equities may be as to when the recall election should be scheduled, the district court abused its discretion by failing altogether to distinguish an election over whether to remove a sitting governor from an election over two initiatives, previously set for March 2004. The court dismissed in a brief footnote plaintiffs’ contention that the case for postponing the vote on the initiatives was even more compelling than for postponing the recall election, without considering, in particular, the racial character of Proposition 54, and the failure of the opposing parties to suggest any reason why the vote on the initiatives should not be postponed until the decertified machinery has been replaced.

What happens next? The case will go to a motions panel of three Ninth Circuit judges (Chief Judge Schroeder, and Judges Tashima and Hawkins), who will have to decide whether to grant the ACLU's request to expedite the appeal. Depending upon what happens, either this motions panel or another panel will hear the appeal. Likely the court will set some kind of expedited schedule, set the case for oral argument, and issue a decision in relatively short order.
What are the chances of success? I think the ACLU raises a strong equal protection claim. Indeed, I felt so strongly about the equal protection issue that I filed an amicus curiae letter (on my own behalf---without any compensation) supporting that position in the district court, and plan to ask the Ninth Circuit for permission to do the same. I think there are some serious errors in the district court's equal protection analysis. Once my brief is filed, I will post a link so that interested readers can see my arguments.

Interesting initiative case out of South Carolina See Douan v. Charleston County Council. Ed Feigenbaum described it to me as follows:

South Carolina Supreme Court unanimously overturns Charleston County's half-cent
sales tax referendum because, inter alia, "the title and instructions to the voters appeared to advocate passage of the tax." The ballot language referred to the sales tax as "the traffic congestion relief, safe roads and clean water sales tax." According to the ruling, "The voter instructions here appear calculated to persuade and ultimately mislead voters into voting in favor of the tax by obscuring the fact that a vote for clean water was a vote for (the) increased sales tax."

County officials were also under fire for distributing fliers promoting passage of the tax at the polls during the election, but the justices, while noting their concerns about the circumstances, found that this issue was moot because of the ballot language.

"Bid for Texas Redistricting Fails Again" A.P. offers this report.

-- 
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