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

To: greenspirit who wrote (9039)	9/23/2003 2:26:52 PM
From: greenspirit	Respond to of 793743

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. electionlaw.blogspot.com 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?

To: greenspirit who wrote (9039)	9/23/2003 2:45:06 PM
From: LindyBill	Read Replies (2) \| Respond to of 793743

There. That feels better. What an excellent rant! Chait has never done better. The frustration that the left has with Bush is laid out in detail. With enough truth to show just how much they are annoyed by the fact that they can't get the country to listen. TNR is now a MOR publication. It goes both left and right with it's writers.

To: greenspirit who wrote (9039)	9/23/2003 2:51:50 PM
From: FaultLine	Read Replies (2) \| Respond to of 793743

This article can only be described as one big envious whine This article can only be described as one big on-the-mark indictment. There. That feels better. --fl@familyranchmy.ass