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Politics : Politics for Pros- moderated -- Ignore unavailable to you. Want to Upgrade?

To: D. Long who wrote (8302)	9/17/2003 4:56:21 AM
From: LindyBill	Respond to of 793756

Everybody is quoting that Alt article I posted yesterday. He really nailed the use of the "Bush v Gore" decision by the 9th Circuit Court. BY JAMES TARANTO - BEST OF THE WEB Tuesday, September 16, 2003 4:25 p.m. The Ninth Circus Our first reaction to yesterday's ruling in Southwest Voter Registration Education Project v. Shelley (link in PDF form), in which the Ninth U.S. Circuit Court of Appeals ordered the cancellation of next month's California election, was a sort of grudging admiration for the cleverness with which the three ultraliberal judges on the panel (one Carter and two Clinton appointees) seemed to be poking the eye of the Supreme Court. The judges extensively cited Bush v. Gore in ruling that California may not hold an election so long as six counties use punch-card ballots, which according to both the antirecall plaintiffs and the state of California have a higher error rate than other forms of voting (though USA Today notes that "many election officials" dispute the anti-punch-card premise). If the ruling stands, voting on the recall of Gov. Gray Davis, as well as on two ballot initiatives, will take place March 2, the day of the Democratic presidential primary. The ruling was baldly partisan, with the judges even mocking the liberation of Iraq: We would be remiss if we did not observe that this is a critical time in our nation's history when we are attempting to persuade the people of other nations of the value of free and open elections. Thus, we are especially mindful of the need to demonstrate our commitment to elections held fairly, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. By relying so heavily on Bush v. Gore as precedent, the Ninth Circuit judges seem to be daring the Supreme Court to overturn their decision. "If I were the U.S. Supreme Court," writes Mickey Kaus, "I would be very reluctant to reverse the Ninth Circuit and thus cement a reputation as an unprincipled partisan court that upholds obscure Equal Protection arguments when they throw an election to Republicans (as in Bush v. Gore) but strikes them down when they would throw the election to the Democrats. This suggests that the pro-recall forces' best hope is a rehearing by the entire Ninth Circuit sitting en banc, not an appeal to SCOTUS." Indeed, as the Associated Press reports, the Ninth Circuit this morning asked the parties if they want the court to reconsider the case en banc. (The Ninth Circuit usually uses a "limited en banc" procedure in which 11 judges, rather than the entire court, rehears a case.) If the en banc panel overturns yesterday's ruling, that should be the end of it. But what if it affirms that the election must be canceled? It's quite possible that the Supreme Court would take the case and reverse the Ninth Circuit, for the three clever judges may have outsmarted themselves. Legal scholar Robert Alt points out in National Review Online that Bush v. Gore does not apply. He quotes from the Supreme Court's decision: The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Southwest Project and Bush are distinguishable on practical as well as legal grounds. In 2000 the Supreme Court resolved a national crisis with a modest remedy, ordering the existing vote count to stand. Yesterday the Ninth Circuit ordered a drastic remedy--the cancellation of an election--to resolve a merely hypothetical problem. It is as if someone went to court in October 2000 and demanded that the election be put off until April 2001 just in case something went wrong with the ballots. The Ninth Circuit's ruling is too much even for the Los Angeles Times, which opposes the recall. "The U.S. Supreme Court should . . . overturn the federal appeals court's ruling," the paper editorializes. "This endless political one-upmanship really amounts to political murder-suicide." The New York Times, however, disagrees: "If the recall proceeds as planned, 40,000 Californians may not have their legal votes counted," it editorializes. "This sort of mass disenfranchisement is unacceptable." But in the bizarro world of the Times, disfranchising the entire electorate is a victory for democracy. The Political Implications It's possible that the Ninth Circuit's efforts on behalf of California Democrats will backfire. In a survey of 500 "likely voters" in California, Rasmussen Reports finds that 58%--including 85% of Republicans and 62% of independents--disagree with the Ninth Circuit ruling. If the election does go on in three weeks as planned, irritation over the ruling may provide an additional impetus to get anti-Davis voters to the polls. What if the ruling does stand, and the recall doesn't take place until March? It seems clear that this would enhance Davis's chances of defeating the recall, if only because his chances are so close to zero now. The Democratic presidential primary would draw Dems to the polls, giving a boost to both Davis and replacement candidate Cruz Bustamante. At the same time, it's possible that anti-Davis Californians will be even more eager to vote after their anger has festered for an additional five months. In any case, wouldn't the national Democrats rather have this matter settled quickly? If the recall election is March 2, that means once primary season is really under way the presidential contenders will be competing for attention with the likes of Arnold Schwarzenegger. And if the Democrats are trying to argue that President Bush has governed the nation badly, do they really want to be choosing their nominee just as the national spotlight is on how atrociously a fellow Democrat has been governing California? opinionjournal.com