En Banc Decision in Recall Case: The Recall Election Is Back On Updated with Excerpts from the Opinion and Links to Commentary and Reporting What Happened?
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The en banc Panel of the United States Court of Appeals for the Ninth Circuit has unanimously affirmed the District Court decision. The recall election is back on, pending further developments. The opinion of the en banc panel is available here or alternatively here. The Ninth Circuit has posted a summary of the En Banc decision. Here is the link, and here is the text:
This matter was reheard by the United States Court of Appeals for the Ninth Circuit, sitting en banc, upon the vote of a majority of the non-recused active judges.
The en banc panel affirmed the district court’s denial of a preliminary injunction in plaintiffs’ action alleging that the use of obsolete punch-card voting systems in the October 7, 2003, California special election in some counties (Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano counties) rather than others violates the Equal Protection Clause of the United States Constitution and Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. At the special election, California voters will be asked to vote on the recall of the California governor and two state propositions: Proposition 53, a proposed amendment to the California Constitution that would dedicate part of the state budget each year to state and local infrastructures, such as water, highway, and park projects; and Proposition 54, another proposed amendment to the California Constitution that would prevent the state from collecting or retaining racial and ethnic data about health care, hate crimes, racial profiling, public education, and public safety. The en banc panel held that the district court did not abuse its discretion in denying the preliminary injunction.
The en banc panel concluded that the plaintiffs had not established a clear probability of success on the merits of their equal protection claim that voters in counties that use punch-card machines will have a comparatively lesser chance of having their votes counted than voters in counties that use other technologies. The en banc panel concluded that the plaintiffs had shown a possibility of success on the merits, but not a strong likelihood of success on the merits, of their claim that the disparate impact of punch-card ballots on minority voters violates Section 2 of the Voting Rights Act.
The en banc panel concluded that the district court did not abuse its discretion in determining that plaintiffs will suffer no hardship that outweighs the stake of the State of California and its citizens in having this election go forward as planned and as required by the California Constitution. Accordingly, the en banc panel affirmed the district court’s judgment denying the preliminary injunction and directed the Clerk of Court to issue the mandate forthwith.
What Does It Mean?
The last phrase "issue the mandate forthwith" means that the Ninth Circuit has made its final decision and that power over the case has been returned to the United States District Court. Any further attack on the denial of the preliminary injunction must now take place either in the United States Supreme Court or in the District Court. Neither option seems promising. Moreover, because the decision was unanimous, and the panel included both Democrats and Republicans, the en banc decision will undercut any claim by the plaintiffs that they have been the victim of a decision based on low politics. The plaintiffs will likely seek certiorari and a stay from the Supreme Court, but there is no reason to believe that this request will be granted. (Howard Bashman makes this point here.) For all intents and purposes, it seems highly likely that the legal challenge to the recall election is over.
What Was the Legal Basis for the Decision?
Essentially, the Ninth Circuit said two things. First, the plaintiffs had shown only a possibility of success on the merits--not a strong probability. Why? On the equal protection claim, the Court said that Bush v. Gore, although ambiguous, was distinguishable. On the Voting Rights Act claim, the Court said that the theory might be strong but the evidence did not establish "disparate impact" to a "strong likelihood." Second, the balance of equities did not favor a preliminary injunction, given only a possibility of success on the merits. Why not? Because delaying the recall would impair a significant interest of the voters of the State of California.
Excerpts from the Opinion Itself
And here are some highlights of the opinion itself:
Standard of Review.
We review the district court’s decision to grant or deny a preliminary injunction for abuse of discretion. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 730 (9th Cir. 1999). Our review is limited and deferential. The district court’s interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999). Thus we have held that an order “will be reversed only if the district court relied on an erroneous legal premise or abused its discretion.”
The Equal Protection Claim (Bush v. Gore)
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.
The Voting Rights Act Claim
Plaintiffs have made a stronger showing on their Voting Rights Act claim. In a nutshell, plaintiffs argue that the alleged disparate impact of punch-card ballots on minority voters violated Section 2 of the Act, 42 U.S.C. § 1973. Plaintiffs allege that minority voters is proportionately reside in punch-card counties and that, even within those counties, punch-card machines discard minority votes at a higher rate.
To establish a Section 2 violation, plaintiffs need only demonstrate “a causalconnection between the challenged voting practice and [a] prohibited discriminatory result.” * * * There is significant dispute in the record, however,
as to the degree and significance of the disparity. Thus, although plaintiffs have shown a possibility of success on the merits, we cannot say that at this stage they
have shown a strong likelihood.
The Balancing of Equities re a Preliminary Injunction
We therefore must determine whether the district court abused its discretion in weighing the hardships and considering the public interest. In this case, hardship falls not only upon the putative defendant, the California Secretary of State, but on all the citizens of California, because this case concerns a statewide election. The public interest is significantly affected. For this reason our law recognizes that election cases are different from ordinary injunction case. * * * Interference with impending lections is extraordinary, id., and interference with an election after voting has begun is unprecedented.
If the recall election scheduled for October 7, 2003, is joined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date. Time and money have been spent to prepare voter information pamphlets and sample ballots, mail absentee ballots, and hire and train poll workers. Public officials have been forced to divert their attention from their official duties in order to campaign. Candidates have crafted their message to the voters in light of the originally-announced schedule and calibrated their message to the political and social environment of the time. They have raised funds under
current campaign contribution laws and expended them in reliance on the election’s taking place on October 7. Potential voters have given their attention to the candidates’ messages and prepared themselves to vote. Hundreds of thousands of absentee voters have already cast their votes in similar reliance upon the election going forward on the timetable announced by the state. These investments of time, money, and the exercise of citizenship rights cannot be returned. If the election is postponed, citizens who have already cast a vote will effectively be told that the vote does not count and that they must vote again. In short, the status quo that existed at the time the election was set cannot be restored because this election has already begun.
Conclusion
For these reasons, the district court did not abuse its discretion in concluding that plaintiffs will suffer no hardship that outweighs the stake of the State of California and its citizens in having this election go forward as planned and as required by the California Constitution. |
