I agree with much of what Fred and Dan say (maybe the first thing Dan and I have agreed upon about this case!).  I write about various split the baby options on my post here:
http://electionlaw.blogspot.com/2003_09_01_electionlaw_archive.html#106427500628021484
Rick

FredWooch@aol.com wrote:

In a message dated 9/22/2003 3:06:02 PM Pacific Standard Time, lowenstein@LAW.UCLA.EDU writes:

    Judge O'Scannlain was leading the charge on the question of standard
    of review.  As someone here has suggested, if they apply an abuse of
    discretion they can uphold Judge Wilson with a minimum of discussion
    of what they may see as difficult issues.  Comments from those on
    the listserv with some knowledge of procedure will be welcome.

I think your comments are pretty much right on, Dan.  It seemed to me as if the Court were going to uphold the trial court (perhaps even unanimously, at least with respect to the recall), on the grounds that he did not abuse his discretion, particularly in the way he balanced the harms and assessed the public interest.  The plaintiffs tried to get away from the abuse of discretion standard of review by arguing that the tiral court committed errors of law, which are reviewed de novo, but the Ninth Circuit has a somewhat odd standard of review in that regard for preliminary injunctions:  If, as Wilson did here, the trial court merely discusses the law in assessing the likelihood of success on the merits as one of the four factors going into the preliminary injunction decision, then the court of appeals does not give full de novo review, but looks only at whether the trial court looked at the correct source of law and "kind of" got it right, even if the court of appeals would have reached a different legal conclusion itself.  On the other hand, if the district court grants or denies a preliminary injunction on the ground that such a result is required as a matter of law, then the court of appeals does engage in full de novo review on that question.  This discussion leads me to believe that a majority of the court is headed toward affirmance of Wilson's decision under the abuse of discretion standard, without necessarily even having to commit to saying that he read the law correctly (in any of the areas he addressed:  Bush v. Gore, res judicata, or Voting Rights Act).  That would be one way to get a quick decision out from a court that might otherwise be more badly fractured on the underlying legal issues.
 
 
 
Fredric D. Woocher
Strumwasser & Woocher LLP
(310) 576-1233
fwoocher@strumwooch.com