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The Ninth Circuit U.S. Court of Appeals postponed California’s recall election Monday morning, citing the risk of a post-election mess to rival the 2000 Florida debacle. “The choice between holding a hurried, constitutionally infirm election and one held a short time later that assures voters that the ‘rudimentary requirements of equal treatment and fundamental fairness are satisfied’ is clear,” the court wrote in a unanimous, unsigned opinion that quoted liberally from the U.S. Supreme Court’s Bush v. Gore decision. “These issues are better resolved prophylactically than by bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory.” The court stayed its ruling for seven days to give the parties a chance to appeal. As of Monday evening, state officials hadn’t said how they would proceed. Lawyers for intervenor and recall proponent Ted Costa said they will go straight to the U.S. Supreme Court, skipping the option of asking the Ninth Circuit to rehear the case en banc . “What they’ve done is adjourn the court and go into a legislative session,” Costa said. “They’ve decided to just disregard the Constitution.” Costa is represented by O’Melveny & Myers partner Charles Diamond and by lawyers at Bell, McAndrews, Hiltachk & Davidian, a Sacramento firm that also represents the California Republican Party. Diamond and Thomas Hiltachk, a partner at Bell, McAndrews, said given the time constraints, they hope Secretary of State Kevin Shelley and Attorney General Bill Lockyer opt to appeal directly to the U.S. Supreme Court. “I don’t think Attorney General Lockyer wants to be seen as running out the clock in a case as important as this one,” Diamond said. It isn’t clear what will happen if Shelley, who is responsible for defending the state’s election laws, chooses instead to go down the en banc path. A spokeswoman for Shelley said the secretary of state was consulting with lawyers in the California attorney general’s office, which is handling the case. At issue in Southwest Voter Education Registration Project v. Shelley , 03 C.D.O.S. 8430, is the use of punch-card machines similar to those used in Florida. In 2001, the state signed onto a consent decree that eliminates them before the general election in March. But the accelerated recall meant that six counties, comprising 44 percent of the population, would use punch cards instead of newer, more accurate machines, at the Oct. 7 special election. Monday’s ruling stems from a request for an injunction filed by the American Civil Liberties Union, which claims that as many as 40,000 votes would not be properly counted in counties that use punch cards. The three judges — Jimmy Carter appointee Harry Pregerson and Bill Clinton appointees Sidney Thomas and Richard Paez — also postponed the vote on two state initiatives placed on the Oct. 7 ballot, including Proposition 54, dubbed by supporters as the Racial Privacy Initiative. “We’re very pleased with this decision, and we’re pleased that the Ninth Circuit has gone on the record as supporting the rights of all California voters in terms of having their votes counted,” said John Ulin, an attorney at Heller Ehrman White & McAuliffe working with the ACLU. U.S. District Judge Stephen Wilson ruled last month that there was a compelling public interest in allowing the vote to proceed Oct. 7, but the Ninth Circuit held that the public’s interest in fair elections outweighed the state’s interest in timely elections. Republicans expressed outrage, with recall candidate and state Sen. Tom McClintock pointing out that the Ninth Circuit struck the words “under God” from the Pledge of Allegiance. Leading Republican candidate Arnold Schwarzenegger asked the secretary of state to appeal the decision. Republican leaders from both houses in the state Legislature also criticized the ruling and the court, saying they expect it to be overruled. Independent Arianna Huffington said she supported the decision. Democrats were more circumspect. An anti-recall group affiliated with Davis, Californians Against the Costly Recall, applauded the decision but said that, because of the likely appeal, it will forge ahead as if the election will go forward Oct. 7. Political analysts have long argued that a March date would help Davis because it would coincide with the Democratic presidential primary, drawing more Democrats to the polls. Davis and his supporters have filed a raft of lawsuits to try to put off the vote until March. But the state Supreme Court rejected all those claims. With recent polls showing that Davis is making gains, though, some analysts wonder if Davis would be better off facing the voters sooner rather than later. Tony Quinn, a political analyst who co-edits the nonpartisan “California Target Book,” said Davis should welcome Oct. 7. “My belief is that the presidential primary will be of less interest than the recall and the driver’s license referendum,” Quinn said, referring to the California Republican Assembly’s move to overturn Davis’ signature on a new law that makes it easier for illegal immigrants to obtain driver’s licenses. Bruce Brusavich, president of Consumer Attorneys of California and a Davis ally, said he doesn’t think Davis would have any problem beating the recall in October. Having it then, he said, helps “people focus on what they’re doing,” as opposed to March, when people could be distracted by other issues. But Hiltachk believes the U.S. Supreme Court will restore the earlier election date. Hiltachk said he will argue that with thousands of absentee ballots already cast, the Ninth Circuit halted an election already under way. He also pointed out that Bush v. Gore dealt with how votes were counted, not the voting machines themselves. It’s a distinction several court observers pointed out as well. “I think that’s one of the reasons the Supreme Court put that line in its opinion — it anticipated exactly this kind of case,” said University of Pittsburgh law professor Arthur Hellman. But the Ninth Circuit relied extensively on the opinion, twice reiterating its conclusion that “the press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.” Pundits have questioned whether the Supreme Court would want to intervene in another election to interpret election law in a way that favors Republicans — a risk Hiltachk said he’s aware of. “We took into consideration all of those factors,” Hiltachk said. “I think there’s a 50-50 chance that it’s not the last word,” said Vikram Amar, a Hastings College of the Law professor who characterized the ruling as “aggressive.” “It shouldn’t be left up to the draw of three [Ninth Circuit judges],” Amar said. Professor Hellman said the Supreme Court may be anticipating the case. “I have to think they’ve already started looking at this,” Hellman said. “There was a good likelihood starting last week, if not sooner, that this would come to them.” Reporter Jason Hoppin’s e-mail address is [email protected] . Reporter Jeff Chorney’s e-mail address is [email protected] .

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