Recall Replay

It's a common complaint that litigants have to overcome a liberal bias when going into a hearing at the Ninth Circuit U.S. Court of Appeals. Not so for today's hearing on whether to postpone California's Oct. 7 recall election. Just as its draw for the three-judge panel could hardly have been any better, the ACLU's draw for today's closely watched en banc hearing is almost the opposite -- the 11-member panel is easily to the right of what the plaintiffs would have hoped for.

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It’s a common complaint that litigants have to overcome a liberal bias when going into a hearing at the Ninth Circuit U.S. Court of Appeals. Not so for today’s hearing on whether to postpone California’s Oct. 7 recall election. The American Civil Liberties Union will argue that voters in six minority-heavy counties risk losing as many as 40,000 votes through the use of “obsolete” punch-card voting machines, similar to those used in the 2000 Florida election debacle. But just as its draw for the three-judge panel could hardly have been any better, the ACLU’s draw for today’s closely watched en banc hearing is almost the opposite — the 11-member panel is easily to the right of what the plaintiffs would have hoped for. “If I were betting, I would say that this panel is more likely to overturn the [three-judge] panel than I would have thought,” said Hastings College of the Law professor Rory Little. No more than three — Chief Judge Mary Schroeder and Judges A. Wallace Tashima and M. Margaret McKeown — can be considered liberal. The three Republican appointees — Alex Kozinski, Diarmuid O’Scannlain and Andrew Kleinfeld — are considered conservative. The rest occupy a middle that — despite all being appointees of President Bill Clinton — often sides with the court’s conservative bloc. They are Barry Silverman, Susan Graber, Ronald Gould, Richard Tallman and Johnnie Rawlinson. In a blow to the ACLU, three judges recused themselves — liberal stalwart Stephen Reinhardt and left-leaning judges Kim Wardlaw and Marsha Berzon. And in another, perhaps more telling blow, the ACLU can’t count on a single vote. None of the original three-judge panel was selected for today’s sitting. A decision is likely to come before the week is out, giving the U.S. Supreme Court a chance to review the case before Oct. 7. At a news conference Friday, Secretary of State Kevin Shelley — who is defending the Oct. 7 date — refused to say whether he thought the panel would help or hurt his case. “I do the play-by-play. I don’t do the color commentary,” Shelley said. He added that he didn’t believe his ability to prevail will depend on the panel’s configuration. The attorney general’s office, which will argue on Shelley’s behalf, refused to comment. Harvard Law School professor Laurence Tribe, who represented Al Gore in Bush v. Gore , is tentatively scheduled to argue the case for the ACLU. The plaintiffs downplayed the draw. “The principles in this case are not partisan principles, so I don’t think much can be made of the makeup of the panel,” said ACLU lawyer Benjamin Wizner. As chief judge, it is Schroeder’s responsibility to assign authorship — unless she’s in the minority, whereby it falls to the senior member of the majority. If conservatives prevail, for example, that duty would likely fall to Kozinski. Shelley will defend the election using procedural arguments and by pointing out that the state is using an educational campaign in counties that use punch cards to minimize the rate of errors, which is higher compared to systems in place in other counties. Intervenor Ted Costa, a recall proponent, will argue that there’s nothing wrong with punch cards themselves. Shelley may be shying away from that argument because of a 2001 consent decree signed by his predecessor, Bill Jones, which agreed to do away with the “obsolete” punch cards. After the Ninth Circuit postponed the election, however, Jones submitted a letter to the court defending punch cards. That Shelley hasn’t done that, and that Costa has, is raising some eyebrows. “I’m not surprised,” said Chapman University professor John Eastman. “I’m glad the intervenors are in this case with the state, because otherwise this looks like collusion with both sides working to stop the recall. “It’s raw politics,” said Eastman, who helped Proposition 54 proponents defend a lawsuit by the state’s Fair Political Practices Commission. “I would say it’s a less-than-vigorous defense.” The speculation is that Attorney General Bill Lockyer may not want the election to proceed because a delay helps Davis, an ally, and Lockyer’s own political ambitions. In a motion filed late Friday, Charles Diamond, Costa’s lawyer, asked the court to give him a majority of the state’s allotted 30 minutes of argument time. Diamond, a partner at O’Melveny & Myers whose firm is not working on the case, noted that he tried to negotiate for time with the secretary of state, but was refused. Diamond argued that Shelley has been “relegating to asides or ignoring altogether the important constitutional and public policy issues the appeal raises.” Nathan Barankin, a spokesman for the attorney general’s office, said AG lawyers were taken aback by Diamond’s motion. “It’s just crazy is what it is,” Barankin said. “It was always our intent to work this out with Mr. Diamond.” Barankin said AG lawyers would respond with their own court motion, and that the issue will be resolved by today. Some downplayed the idea that the state isn’t playing to win, though. “Political scientists aren’t even sure that a delay helps Davis,” pointed out Hastings professor Vikram Amar. Amar said the six-month delay could bankrupt up-and-comer candidate Tom McClintock, whose conservative base would then swing to Arnold Schwarzenegger, solidifying Republican support. Others said the state may feel prevented from making the punch-card argument by the consent decree, but agreed that it would help. “Sure it does,” said Boalt Hall School of Law professor Jesse Choper. “It gives you another big argument.” Dave Gilliard, chief consultant to Rescue California � Recall Gray Davis, said Friday that because the court voted for the en banc and scheduled arguments for today, “we think it’s certainly an indication it’s going to go our way.” However, if it looks like the Ninth Circuit is taking too long with the en banc , Gilliard said the group would also consider circumventing the court and asking U.S. Supreme Court justices to intervene. On the plaintiffs’ side, John Ulin, of Heller Ehrman White & McAuliffe, said asking the high court to intervene before the Ninth Circuit was finished would be “very unusual.” He said he was confident that the en banc decision would be ready long before Oct. 7, in case the panel decides to overturn the three-judge panel and to allow the election to go as planned. “I think [the judges] understand they need to resolve it quickly,” Ulin said. Since the case involves the Supreme Court’s controversial Bush v. Gore decision, speculation has been rampant about whether the Supreme Court would want to confront that decision again. An appeal is certain no matter what happens, but if the Ninth Circuit reverses itself — something it does more often than not when hearing en bancs–the Supreme Court may not pick it up. “I don’t think so,” Little said. “I think if they reverse, it’s done.” Reporter Jason Hoppin’s e-mail address is [email protected] . Reporter Jeff Chorney’s e-mail address is [email protected] .

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