I have heard from a few of you that you cannot get through to my blog
to see the comments. I have reproduced them below (my apologies to
those of you who did not want one, much less two, analyses from me):
Some analysis of the Ninth Circuit opinion [Disclosure: I filed
an amicus brief supporting the ACLU's position in this case.] Here are
my first impressions regarding the short legal discussion in the per
curiam opinion.
1. The opinion seems to leave open the possibility of a
post-election challenge to disparities caused by punch card ballots.
On pages 11-12, the court writes that "plaintiffs....are legitimately
concerned that the use of the punch-card system will deny the right to
vote to some voters who must use that system. At this time, it
is merely a speculative possibility...that any such denial will
influence the result of the election." (Emphasis added.) My translation
of this is that if there is a close election, where the margin of
victory may be exceeded by the margin of error with the punch card
machines, some kind of remedy such as a recount might be required. The
problem with this line of reasoning, however, is that a recount cannot
deal with some of the problems with punch cards, such as overvotes. But
we may expect further post-election litigation.
2. This was clearly written as a compromise decision. The panel
was obviously split on what meaning, if any, Bush v. Gore has.
The sum total of the discussion of the case on the merits is one
paragraph on page 8:
We have not previously had occasion to consider the precise
equal protection claim raised here. That a panel of this court
unanimously concluded the claim had merit provides evidence that the
argument is one over which reasonable jurists may differ. In Bush v.
Gore, the leading case on disputed elections, the court specifically
noted: “The question before the Court is not whether local entities, in
the exercise of their expertise, may develop different systems for
implementing elections.” 531 U.S. at 109. We conclude the district
court did not abuse its discretion in holding that the plaintiffs have
not established a clear probability of success on the merits of their
equal protection claim.
Note how the paragraph does not fit together.The second sentence
tells us reasonable people may differ on the case's meaning. The third
sentence seems to suggest the Bush precedent does not apply in
this case. It concludes with a statement that the district court did
not abuse its discretion because the law is unclear. Query whether this
is consistent with Judge O'Scannlain's approach in the 209 case (see
two posts below this one)---the court here simply never decides what
the law is, but seems to say that because reasonable minds could
differ, 11 appellate judges will defer to a single district judge on
this question, at least at the preliminary injunction stage. And why
was this not done for Proposition 209.
3. The opinion leaves open the possibliity of further voting rights
claims based on voting technology disparities.
Besides fudging the equal protection issue, the opinion also states
that the claim under section 2 is "stronger." The reason the panel said
that the section 2 claim failed is that "[t]here is a significant
dispute in the record, however, as to the degree and significance of
the disparity. Thus, although plaintiffs have shown a possibility of
succes on the merits, we cannot say that at this stage they have shown
a strong likelihood." By writing the opinion in this way, the court has
tried to do as little as it could to make any new voting rights law or
prejudice future litigation over the use of punch cards while still
reversing the three judge court.
4. Incorrect statement of law in the opinion? On page 10,
the court says that "interference with an election after voting has
begun is unprecedented." I believe this is contradicted by Clark v.
Roemer,
500 U.S. 646 (1991), where, if I remember correctly, absentee balloting
had already begun. (That was a section 5 case, but that should not
matter---if a federal court can enjoin an election for a federal
statutory violation, surely it can do so for a constitutional violation
as well.)
5. To the Supreme Court? I do not know whether or not the
ACLU will seek to appeal to the United States Supreme Court. I think
the chances of such an appeal being successful --- particularly if
directed in the form of a motion for an emergency stay to Justice
O'Connor, the circuit's justice --- are slim to none. The en banc court
did the Supreme Court a tremendous favor. Had the Supreme Court issued
the identical decision as issued here, no doubt it would have been
excoriated for making a second political decision---both favoring
Republicans over Democrats. I don't think that would have been a fair
characterization, but such claims are made routinely in these cases
these days.
6. Post-election litigation? As noted in point 1 above, this is
certainly possible. Also, I would not be surprised to see litigation on
election day.
If, as I predict, there are problems in places like Los Angeles (which
has consolidated 5,000 polling down to 1,800) with long lines, will a
judge order the polls to remain open longer? Will such a ruling be
subject to challenge?
--
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