Patterico's Pontifications

9/23/2003

LOST ARCHIVES: I have lost

Filed under: General — Patterico @ 9:32 pm

LOST ARCHIVES: I have lost all archives from July to the present. The main problem this creates is that people trying to link here from Mickey Kaus’s blog cannot do so. Also, many of the internal links in the posts don’t work. I have been working on this problem for hours now. I don’t know if it is a Blogger problem or a Patterico problem. I would apologize to the people who can’t access my page, but . . . well, you see the problem, don’t you?

Blogger [insert your favorite verb-expletive here]s.

UPDATE: I checked the “How Appealing” website (another Blogger victim), and noticed that its archives are also gone from July 2003 to the present. So, it’s yet another Blogger problem. If it hadn’t happened while I was making changes to my template (adding a bunch of great new blogs for your enjoyment), I would have known it was a Blogger glitch. As it is, it took hours of pointless attempted “fixes” before I finally realized that there’s nothing I can do about it.

Blogger strikes (out) again.

BOGUS RECALL DECISION OVERTURNED: This

Filed under: General — Patterico @ 6:17 pm

BOGUS RECALL DECISION OVERTURNED: This happened at 9 a.m. this morning, but I have a strict no-blogging-from-work policy. So I don’t get to comment until now, and it doesn’t seem exciting any more, because everyone knows already.

Here’s something you might not have thought about, though. As you’re doing that jig, re-read the en banc panel’s decision again. I’ll wait — it’s a short opinion.

Done already? Good. Now, doesn’t it seem a little like they’re inviting the plaintiffs to contest the election — if it’s really close — based on the Voting Rights Act? Sure, at this point it’s a “speculative possibility,” but once the election is done, it won’t be — if it’s really close.

Plus, as a local radio program observed, this whole fiasco has been very distracting and has taken momentum out of the recall. Somewhere, Harry “that’s their problem” Pregerson might still be smiling.

Just some things to think about. But don’t let me be a wet blanket. Take satisfaction in the decision. The bogus three-judge panel decision is history! Its ridiculous equal protection argument was interred with the respect it deserved: a dismissive one-paragraph smackdown. No matter what else happens, rationality won the day, decisively, with no dissents — in the Ninth Circuit. Judges Pregerson, Thomas, and Paez have been rightfully shamed. Now that is something to celebrate!

P.S.: I doubt that I will live up to my promise of blogging about the rest of the oral argument. This whole post feels very “nine hours ago” as it is. The only thing more anticlimactic than reporting the en banc decision nine hours after it’s issued, would be to discuss the oral argument any further than I already have. This is the cost of a no-blogging-from-work policy.

P.P.S.: I just saw the headline in the Dog Trainer and thought: wow, if I felt like I was behind the curve, I wonder how the reporters feel, knowing people are reading day-old news!

TALK TO YOUR LOCAL POLLSTER:

Filed under: General — Patterico @ 5:42 pm

TALK TO YOUR LOCAL POLLSTER: I can’t tell you how often I hear otherwise intelligent people saying that they won’t take calls from pollsters. I have quite the opposite take.

Should McClintock drop out? Should Republicans pressure him to do so? Should voters who hate Gray Davis, but think Mr. N-Word Cruz Bustamante would be worse than Gray Davis, vote against the recall to avoid an N-Word governorship?

Interesting questions, all. And all questions whose answers will be determined by polling.

Let me say something unpatriotic, anti-American, anti-mom, apple pie, and Chevrolet: your one vote will almost never make a difference. I know there may be a situation where it could. And there may be a situation where you could win the lottery. But neither will ever happen. It’s one vote.

But if you respond to a poll . . . ah, now we’re talking. For some reason, now your opinion means something. People pay attention to it. And that gives you leverage. Archimedes said he could move the earth with leverage. You can move the political world if you can find a way to be the guy the pollsters call. If I could, I would submit to a political survey every night of the week.

If this bonanza comes to you out of the blue — if you get a call from a political pollster — take the call! At least if you’re a Republican or a libertarian or something sensible like that. If you’re a Demmycrat — you’re right. Those polls are a big waste of time.

DECISION TODAY: How Appealing reports

Filed under: General — Patterico @ 6:27 am

DECISION TODAY: How Appealing reports that the en banc panel will issue a decision today. With Blogger having been down last night, I just learned about this for the first time.

I suppose that announcement of a decision does not necessarily mean that there will be an opinion already. Judge Kozinski (who, as I mentioned below, has a good chance of being the one who will write the opinion) is a hard worker, but getting something out by now would seem to a bit much, even for him. At the same time, it is highly unusual to issue a decision without an accompanying opinion. I don’t remember ever seeing an example of that happening.

By the way, don’t rule out the remote possibility that the Chief Judge goes along with a decision upholding the trial court’s denial of an injunction. If the vote is looking lopsided, which would not surprise me, she might not want to end up on the wrong side. Partisan as she is, she isn’t Harry “that’s their problem” Pregerson.

FURTHER CRITICISM OF BOGUS RECALL

Filed under: General — Patterico @ 1:36 am

FURTHER CRITICISM OF BOGUS RECALL DECISION: The post below got me thinking about another problem with the bogus Ninth Circuit panel decision delaying the recall election. As you probably know if you have been following the story closely, the panel considered only the equal protection argument (a constitutional question) and therefore did not rule on the plaintiffs’ Voting Rights Act arguments (a statutory issue).

Didn’t I learn in law school that courts generally try to avoid deciding constitutional issues unless absolutely necessary? Why, I think I did! As the U.S. Supreme Court has stated:

A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.

(For you legal geeks, the decision is Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).)

So if the Voting Rights Act claim (a mere statutory claim) was sufficient to warrant an injunction, the panel should have so ruled. And if it wasn’t, the panel should have rejected the Voting Rights Act claim before ruling on the equal protection argument.

So why would the Ninth Circuit panel have violated this “fundamental and longstanding principle,” ignored the statutory issue, and reached out to decide the constitutional issue? I have already answered that question. If you don’t know the answer by now, you haven’t been paying attention!

RECALL COVERAGE: Well, earlier I

Filed under: General — Patterico @ 1:09 am

RECALL COVERAGE: Well, earlier I promised to provide a review of the Ninth Circuit oral argument. I forgot that I was going to see Blue Rodeo tonight. (Here’s hoping Greg Keelor’s dad is doing okay!) After I got home from work I had only about half an hour to watch my tape of the argument before we had to leave.

But what a half-hour! Judge Kozinski had Laurence Tribe pounded into submission within 5 minutes. It was truly an amazing thing to watch. Kozinski jumped on Tribe right away, focusing on an issue at the very heart of the plaintiffs’ claim, having to do with the statistical study which concluded that punchcards have a high error rate.

Kozinski got Tribe to agree that the study’s error rate did not take into account the possibility of manual recounts. Given that California has a uniform standard for determining which detached chads will count as votes, Kozinski said, we don’t have a Bush v. Gore situation (thank you for saying that, judge!). Therefore, California can conduct a constitutional manual recount, and can recover votes that were lost in the machine count. The study does not take the potential recovery of these votes into account. So, as far as the evidence in the record shows, Kozinski asked Tribe, we don’t really know whether punchcard ballots are any worse than any other technology. Right?

There may have been good responses to this question. But if there were, Tribe didn’t make them. He ended up saying — and I’m paraphrasing, but I think it’s a fair paraphrase — that all of this may be true, but there is still a problem if people using punchcard ballots think that they are using a second-class system. I heard that and thought: game over! He just conceded that the plaintiffs haven’t really shown that punchcards are less reliable!

As I reluctantly turned off the TV, Mark Rosenbaum of the ACLU was trying to pull Larry’s fat out of the fire — but with the limited time he had, he was so busy being pulled to and fro by the various judges like a wishbone, he had no chance to make an articulate point.

I hasten to add that oral argument is generally a chance for smart judges to probe the weaknesses of each side’s case. Since the plaintiffs (as the losing party in the trial court) went first, they are naturally the ones who got hammered first. But, based on the limited news coverage I have seen, it looks like the judges had some tough questions for the other side about the Voting Rights Act. Since this issue was not addressed by the bogus panel decision, I am less familiar with it. We’ll leave the matter there for now, until I can fire up my VCR again tomorrow evening.


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