When the ACLU sought a TRO and PI from the district court, the 
Oct. 7 election was not then "ongoing."  Can the en banc panel rely 
on the fact that 3 weeks later absentee voting is now underway 
when reviewing the lower court's order under the "abuse of 
discretion" standard?

As for the trial court's discretion to deny preliminary relief, even in 
the face of a known constitutional violation, the en banc panel 
seems to have properly cited to Reynolds.  The pertinent language 
there:

"We do not consider here the difficult question of the proper 
remedial devices which federal courts should utilize in state 
legislative apportionment cases.  Remedial techniques in this 
new and developing area of the law will probably often differ with 
the circumstances of the challenged apportionment and a variety 
of local conditions. It is enough to say now that, once a State's 
legislative apportionment scheme has been found to be 
unconstitutional, it would be the unusual case in which a court 
would be justified in not taking appropriate action to insure that no 
further elections are conducted under the invalid plan. However,  
under certain circumstances, such as where an impending 
election is imminent and a State's election machinery is already in 
progress, equitable considerations might justify a court in 
withholding the granting of immediately effective relief in a 
legislative apportionment case, even though the existing 
apportionment scheme was found invalid. In awarding or 
withholding immediate relief, a court is entitled to and should 
consider the proximity of a forthcoming election and the 
mechanics and complexities of state election laws, and should act 
and rely upon general equitable principles. With respect to the 
timing of relief, a court can reasonably endeavor to avoid a 
disruption of the election process which might result from 
requiring precipitate changes that could make unreasonable or 
embarrassing demands on a State in adjusting to the 
requirements of the court's decree. As stated by MR. JUSTICE 
DOUGLAS, concurring in Baker v. Carr, "any relief accorded can be 
fashioned in the light of well-known principles of equity." 


Of course, the remedy in Reynolds (reaportioning a state 
legislature) was far more complex and disruptive than the remedy 
sought in this case (postponment of an election to allow the state 
to comply with its own decisions).

Is anybody else troubled by the notion that a judge has discretion 
not to remedy an EP violation in election cases?  What will happen 
if the vote margin on any of the 4 questions on Oct. 7 is less than 
40,000?



Karl Manheim
Loyola Law School
919 S. Albany St.
Los Angeles, CA  90015
Tel:   213-736-1106
Fax:   240-414-7747
Web:   http://faculty.lls.edu/manheim

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