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The 9th U.S. Circuit Court of Appeals canceled California’s recall election this 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 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, which the state has already promised to do. At issue is the use of punch-card machines similar to those used in Florida. In 2001, the state signed an agreement to eliminate them before the general election in March. But the accelerated recall meant that six counties, comprising 44 percent of the population, would have used punch cards instead of newer, more accurate machines, at the Oct. 7 special election. “Thus, the effect of using punch-card voting systems in some, but not all, counties, is to discriminate on the basis of geographic residence,” the court wrote. “This is a classic voting rights equal protection claim,” the court added. The panel consisted of three of the court’s more liberal judges, Harry Pregerson, Sidney Thomas and Richard Paez. The three-judge panel’s decision is sure to set off a frenzy of litigation, paling only in comparison to the 2000 Florida election. A key question for the losing party is whether to seek en banc review or head straight to the U.S. Supreme Court. O’Melveny & Myers partner Charles Diamond, a lawyer for intervenor Ted Costa, said last week that if his client lost, he would go straight to the Supreme Court, “given the time constraints.” Diamond said if the 9th Circuit tells election workers to stop preparations, it could jeopardize the Oct. 7 date, even if the circuit is overruled within days. “If they are ordered to stand down, this election will not come off Oct. 7,” Diamond said. University of California, Hastings College of the Law professor Rory Little suggested last week that the losing party might want to appeal on both tracks at the same time. “You can file an en banc petition and a cert petition. It doesn’t happen all the time, and neither court likes it very much,” Little said. But, he said, it can save time. Little recommends against skipping the en banc. “You’d be silly to bypass that option,” he said, because the Supreme Court would then become the loser’s last chance. And there are no guarantees the high court would step in as it did in Bush v. Gore. As Hastings professor Vikram Amar said, “You don’t want to look like you’re intervening twice for a Republican.” Richard Hasen, an election law specialist and professor at Loyola Law School, is also skeptical of a cert petition. “I wouldn’t bet on the Supreme Court getting involved,” said Hasen, who filed a brief in support of the ACLU in the 9th Circuit case. The case places Bush v. Gore front and center, something the court may be reluctant to tackle. The court recently declined to hear an appeal from the New Jersey Supreme Court over a candidate added late to a state Senate ballot. Bush v. Gore was also key in that case. So, the loser’s best hope may be en banc review. Several lawyers anticipate that recall proponents would pursue that option if the circuit delays the election. But whether the court could review the case in time for Oct. 7 is another question. Ninth Circuit clerk Cathy Catterson said it wouldn’t be impossible to expedite a hearing before an 11-judge panel drawn from the far-flung circuit. Though rare, the court has done so in death penalty cases. One possibility is to hear the case in a teleconference. “Obviously,” Catterson said, “it’s not something that happens every day.” An en banc bid may be especially attractive to recall proponents: The 11-judge panel can’t get any more liberal than the three left-of-center judges — Sidney Thomas, Harry Pregerson and Richard Paez — who heard Thursday’s case. Complicating litigation strategy for the parties is the possibility that the court could keep the recall on the calendar, but push back the initiatives. It wouldn’t be the California recall without one more twist, however. Justice Sandra Day O’Connor, who usually fields appeals from the 9th Circuit, was scheduled to leave the country last weekend for a judicial conference in Bahrain. So the duty for reviewing cert petitions from the 9th Circuit would apparently fall to the next junior justice. Who happens to be Antonin Scalia.

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