Patterico's Pontifications



Filed under: General — Patterico @ 9:28 pm

DOG TRAINER OPPOSES RECALL DECISION: I am shocked. The Dog Trainer opposes the Ninth Circuit’s decision to delay the recall election. I am speechless.

UPDATE: Reader Henry writes to say he thinks that the Dog Trainer is simply happy with Davis’s recent progress in fighting the recall and doesn’t want to see his momentum disrupted.


Filed under: General — Patterico @ 12:40 pm

EN BANC GRANTED: I just read that the recall decision will be reheard en banc. Don’t hold your breath waiting for the Ninth Circuit to clean up its own mess.

UPDATE: How Appealing says the news story I link to above is wrong. The Ninth Circuit is just considering en banc review.


Filed under: General — Patterico @ 11:02 am

RECALL DECISION ANALYZED: I am still vacationing, and don’t have a lot of time to put into analysis of the recall decision. I’ll give you my main thoughts. Keep in mind that I have read almost no mainstream coverage of what the talking heads and experts are saying. So if what I am saying is wildly divergent from what you have heard — or, at the other end of the spectrum, if it just repeats what you have heard — I apologize in advance. You are getting nothing more or less than my thoughts upon reading the Ninth Circuit opinion — and re-reading Bush v. Gore.

First, don’t be absolutely shocked if the U.S. Supreme Court declines to wade into this mess. Despite what some of us in California might think, and despite the way the national media is covering this story, the California gubernatorial election is not that big a deal. Traditionally, the Court really does try to avoid getting into these kinds of messes. They could just give the whole thing a pass.

That said, I am inclined to think that they’ll take the case, if only because the Ninth Circuit has really, really mucked this up. The decision purports to rely heavily on Bush v. Gore, so I thought I’d actually go back to the source, and remind you of some of the things that the U.S. Supreme Court said in that case. (You can read it for yourself here.) I want to focus on what the issue actually was, and what the Court (and dissenters) said about the issue of using different voting systems in the same state. (All emphasis will be mine.)

We’ll put the stuff about Article II to one side and just look at the equal protection argument, since that carried the day. The Court stated that the relevant question presented was “whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.” The Court concluded that the Equal Protection Clause was violated.

That was the issue. The issue was not whether a state may use different voting systems within the same state. The Court was quite clear on this point: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.

Souter’s dissent echoes this point. In it, he says: “It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on.” Souter explained why the situation in Florida was different:

But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as “hanging” or “dimpled” chads). . . . I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary.

As the majority explained, the problem was not the state’s “intent of the voter” standard, but “the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.”

Just to remind you of what an incredible disaster the process was, let me recount some of the examples of different standards applied to similar ballots noted by the Court. The opinion stated that “three members of the county canvassing board applied different standards in defining a legal vote.” It further noted that “at least one county [Palm Beach] changed its evaluative standards during the counting process.” Finally, the Court observed that the Florida Supreme Court’s decision “gives no assurance that the recounts included in a final certification must be complete.” In other words, you could have partial recounts determining a presidential election.

This is the travesty that Bush v. Gore stopped. And so we come to the Ninth Circuit decision.

First, some background on the judges. The decision was issued by two Clinton appointees, together with a Carter appointee (Harry Pregerson) who is second only to Stephen Reinhardt as the most liberal judge on the Ninth Circuit (and thus one of the most liberal judges in the nation). Pregerson once issued so many illegal stays of an execution that the U.S. Supreme Court had to issue an unprecedented order: no further orders in that case would be valid unless issued by the Supreme Court. This order was issued specifically to keep Harry Pregerson from issuing more unlawful orders. That should be embarrassing to a judge. For Pregerson, it was a point of pride.

Pregerson is also the judge who, when the Supreme Court recently upheld California’s Three Strikes law as applied to petty thieves, refused to apply the decision on remand. Because he kept getting overruled 2-1, it never affected the outcome of a case, but it tells you something about the man.

I will bet 50 thousand dollars that, when Bush v. Gore was issued, judges Pregerson, Thomas, and Paez all ridiculed the decision to their friends and family. These same folks now call the current equal protection claim a “classic voting rights equal protection claim.”

The court says that Bush v. Gore held that “using different standards for counting votes in different counties across Florida violates the Equal Protection Clause.” It then characterizes the current plaintiffs’ claim as “the same” because of the different error rates involved with punchcard systems.

This is a deliberate misreading of Bush v. Gore. The clearest evidence of this is the court nowhere addresses the language I have emphasized above from Bush v. Gore — language which makes it clear that states may use different voting methods in different counties, despite the presence of different error rates. Even David Souter admits this!

My preliminary conclusion, from a quick reading of the opinion, is that it is (unfortunately) what I suspected it would be from the makeup of the panel: a result-oriented, cynical opinion that attempts to throw Bush v. Gore back in the face of the Supreme Court. This Ninth Circuit panel pretends to simply follow Bush v. Gore while wholly ignoring the holding of that opinion and the most relevant language. Disappointing but predictable.

P.S.: I live in Los Angeles County, and therefore am likely to be “disenfranchised.” Bah! If I fill out the card right, I have no doubt that my vote will get counted. I am not worried.

UPDATE: A reader points out that, when I claim the panel “nowhere addresses” the language I emphasized above, that could be taken to mean that the panel did not even quote any of the language. Any such impression would be false. At page 21 of the opinion, the panel quotes the language: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” The panel says that this is also the case for the recall election, and then proceeds to hold that California may not hold an election in which local entities use different systems. Their fig leaf is that the systems do not record votes with equal accuracy, but (as Souter points out) that will always be the case for different voting systems. Essentially, the panel said: “Bush v. Gore said it didn’t cover situation x. We agree. This is not situation x. Rather, it is situation x. Accordingly, this situation is unconstitutional.” This is not “addressing” the language; it is paying lip service to it, and then wholly ignoring it.

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