But was it true when the ACLU filed its motion for a preliminary
injunction?
This raises two questions, I believe. The easier one is that of
timing: when is an injunction appropriate? If the ACLU
is right on the merits, when should it have acted so as to cause less
disruption? If it had tried to get an injunction before the
Secretary of State certified the petitions, it presumably would have been
rejected on ripeness grounds. Perhaps Prof. Lowenstein's point
means that a court should (almost?) never issue an injunction that delays
an already-scheduled election date, so that in this special situation
where the election was scheduled on short notice, no injunction could
issue no matter how egregious the constitutional violation; but with
respect to an election that is still far enough off that the state can
fix the legal violation in time to hold the election, an injunction might
be proper. This would cover the consent decree that the ACLU had
previously obtained.
The harder question is substantive: what facts would justify
enjoining a scheduled election (in the Lowenstein approach), even if the
problem could not be fixed in time to hold the election without
delay? What if California said that no 18-year-olds would be
permitted to vote? Or no women? I imagine that in such
extreme circumstances, more of us would approve of an injunction, even if
the election had to be delayed.
Which is why the Ninth Circuit's deference to the trial court on matters
of law is so fascinating. The more pernicious the violation, the
more willing we would be to consider an injunction appropriate; this is
simply another way of stating the standard test for a P.I. To see
the appellate court give Chevron-type deference on whether even an
undisputed set of facts violates the law is unusual in the experience of
most litigators. We know what reasons are given for this kind of
approach ("reasonable jurists can differ") in habeas
cases that assess the decisions of state courts (federalism/comity,
finality, etc.) and in agency cases (agency expertise, respect for
Congressional delegation of power to fill in interstices of statutes,
etc.) and in qualified immunity cases (common law tradition, fair notice
to defendants, eliminate chilling effect on government operations,
etc.). What policies support the Ninth Circuit's approach in
reviewing a district court's legal conclusions, especially in cases that,
unlike this one, are not expedited and allow the appellate court to
consider the legal questions as exhaustively as it wishes?
One final question: although the Ninth Circuit approach has been
applied both when a trial judge has granted a P.I. and when he/she has
denied one, can we really imagine that if Judge Wilson had granted the
injunction here, the Ninth Circuit would have affirmed by saying, in
part, that reasonable judges could differ on the Bush v. Gore
question?
At 05:55 PM 09/23/2003 -0700, Lowenstein, Daniel wrote:
The ACLU says:
With the election just two weeks
away, we do not believe we should prolong the uncertainty any longer. At
this point, it is important that the candidates, the campaigns, and the
voters know that the election will be held on a date that is certain.
This is very true. It
was equally true last Monday.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California
90095-1476
310-825-5148
J. J. Gass
Associate Counsel, Democracy Program
212-998-6281
jj.gass@nyu.edu
Brennan Center for Justice at NYU School of Law
161 Avenue of the Americas, 12th Floor
fax 212-995-4550
www.brennancenter.org