BREAKING RECALL LITIGATION NEWS The Ninth Circuit has asked the parties
to brief whether or not the ACLU punch card case could be taken en banc.
The briefs are due by 2 pm tomorrow. How did this happen, if the parties have
not yet filed a request for an en banc hearing? Any active, non-recused judge
can call for a vote to take the case en banc. If it is taken en banc, it
will be heard by a panel of 11 judges. (See here
and scroll down to FRAP 35 and the relevant circuit rules on en banc procedures.)
I do not believe that the en banc activity will prevent either the state,
or Costa, or both, from petitioning for a writ of certiorari and a stay.
It is possible that the en banc action will cause the Supreme Court justices
to wait a bit before ruling. In the BCRA case, for example, a party sought
a stay of part of the BCRA from Chief Justice Rehnquist before the lower court
had ruled on a stay request. The Chief Justice denied the motion without
prejudice, and said it could be refiled within a week if the lower court denied
the stay.
UPDATE: Here is the text of the order: "Before: Thomas, En Banc Coordinator:
The parties, including the intervenor, shall file simultaneous briefs, not
to exceed 15 pages, or 7,000 words, setting forth their views on whether or
not this case should be reheard en banc. The briefs shall be filed with the
Clerk no later than Wednesday, September 17, at 2:00pm P.D.T. The briefs
may be filed in letter format and shall be sent to the Court electronically.
Issuance of the mandate will be stayed pending further order of this Court."
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Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com