Recall Redemption

In restoring the Oct. 7 vote on California's gubernatorial recall, the 9th Circuit's 11-judge panel mentioned Bush v. Gore only once, and did not come close to interpreting what it meant. The court focused on the practical matters of the election process and the state's outlay of millions of dollars in preparations. "In short," the court wrote, "the status quo that existed at the time the election was set cannot be restored because this election has already begun."

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With the 9th U.S. Circuit Court of Appeals restoring the Oct. 7 vote and the American Civil Liberties Union disavowing further court action, California’s gubernatorial recall drive can return to its usual craziness. The same day that an 11-judge panel heard arguments, Jay Leno hosted actor Gary Coleman, porn star Mary Carey and 90 other fringe candidates on his talk show; Lt. Gov. Cruz Bustamante lost access to $3.8 million in campaign donations and called it “vindication”; pundits accused Hollywood action hero Arnold Schwarzenegger of “going negative”; the man who started the recall urged Republicans to vote against it if they couldn’t agree on a candidate; and a media crush turned the 9th Circuit itself into something resembling “Camp O.J.” But 20 hours later, the 9th Circuit stepped away from the spotlight. It produced a unanimous, unsigned compromise opinion that made it clear that’s exactly where the court would prefer to stay. “Did the lower court get it right, or what?” asked Richard Hasen, a election law specialist at Loyola Law School. The 11 en banc judges mentioned Bush v. Gore only once, but did not come close to interpreting what it meant. And the divergent judicial viewpoints expressed during Monday’s nationally televised hearing were subsumed into a 12-page decision that faulted neither U.S. District Judge Stephen Wilson nor the three-judge panel, which last week reversed him and ordered the election stopped. “This was an opinion that tried not to insult anybody,” said Vikram Amar, a professor at Hastings College of the Law. Instead, the court focused on practical concerns — hundreds of thousands of absentee ballots have been returned, campaigns are geared toward an Oct. 7 date, poll workers have been hired, and the state has spent millions preparing for the vote. “In short, the status quo that existed at the time the election was set cannot be restored because this election has already begun,” the court wrote. The ACLU had challenged Secretary of State Kevin Shelley’s decision to set an Oct. 7 vote for the recall and two state initiatives, including the controversial “Racial Privacy Initiative.” It argued that punch cards have a higher error rate than newer machines used in the rest of the state. Punch cards are still in use in six counties, comprising 44 percent of the population, despite a consent decree that called them obsolete. Though the 11-judge panel included some language in the decision suggesting that the ACLU had a good case, the court said its review was “limited and deferential” — a far cry from the three-judge panel that halted the election over concerns that votes in one county are more likely to be counted than votes in another. Almost immediately, the ACLU announced it wouldn’t appeal, saying that with only two weeks left until the election voters deserve to know when they can vote. But ACLU lawyer Mark Rosenbaum said he was disappointed by the 11-0 decision. “I would have preferred a different mathematical outcome,” Rosenbaum said. “Am I surprised about it? Yes.” “We were delighted,” said Charles Diamond, an attorney for intervenor Ted Costa. “Basically what they said was that the district court had it right. Their job was to review for a clear error of judgment, and there was no error in judgment in allowing the people of California to vote.” Shelley commended the judges for deciding the case quickly. “Their unanimous decision [Tuesday] eliminates the continuing uncertainty over whether the special election will be held two weeks from today,” Shelley said. “My message as chief election officer is that the confusion is over.” But he would not guarantee that there won’t be problems in those six counties. “There are always problems in any election,” Shelley said. And that raised the possibility of post-election litigation similar to the 2000 Florida election debacle — a possibility the 9th Circuit seemingly acknowledged near the end of its opinion. “Which to me is exactly wrong,” said Hasen, the election law expert who had filed a brief supporting the ACLU. “These are the kinds of problems that should be decided before the election.” Though Rosenbaum was surprised the decision was unanimous, others were not. “I think it would have been obvious to all of the judges that the court should speak with one voice,” said Arthur Hellman, a University of Pittsburgh School of Law professor and former head staff attorney at the 9th Circuit. But to reach that point may well have required compromise. Hellman, for one, saw echoes of several judges’ questions in the opinion — a sign that it represents a blend of viewpoints. He also homed in on the court’s discussion — or non-discussion — of Bush v. Gore, the controversial Supreme Court decision that decided the 2000 presidential election. The ACLU cited that case extensively, leading to speculation about what the U.S. Supreme Court would do if Southwest Voter Registration Education Project v. Shelley, 03 C.D.O.S. 8617, landed in its lap. But the precedent all the election experts were watching for appeared only once in Tuesday’s decision when the court cited the same line quoted by Judge Andrew Kleinfeld at Monday’s hearing: “The question before the court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” The court then says the lower court did not abuse its discretion, but it does not discuss the relationship between the two. “What’s their analysis of Bush v. Gore? It’s one paragraph on the bottom of page 8,” said Hasen, who has written extensively on the Supreme Court ruling. “You had the feeling that at some point in the drafting there might have been a couple more sentences there,” Hellman said of the hastily prepared opinion. On the other hand, Hasen was pleased with the decision in one respect. “They reversed [the three-judge panel] in the narrowest way possible,” Hasen said. Though it has no precedential value, he said, “it has value in this sense — it could have been much worse.” Most observers said the 9th Circuit performed exceedingly well during the past week as it labored under intense public scrutiny. It not only made court documents available over the Internet, but educated many about its internal en banc procedures. And then it opened up a lively oral argument to the eyes of the nation, via C-SPAN, something federal courts rarely do. “Anyone who watched the argument [Monday] had to come away feeling good about the 9th Circuit,” said Amar, who was critical of the three-judge panel decision. Sanford Svetcov, an appellate specialist at Milberg Weiss Bershad Hynes & Lerach, agreed. “I think the process is helped by public review, and I thought the process distinguished itself [Monday],” Svetcov said.

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