Will the CA recall be delayed?

[squeegee]

The 9th U.S. Circuit Court of Appeals has tentatively delayed the California Recall.The 9th Circuit has tentatively delayed the California Recall. (http://story.news.yahoo.com/news?tmpl=story&cid=511&ncid=696&e=10&u=/ap/20030915/ap_on_el_gu/davis_recall)

Here (http://www.washingtonpost.com/wp-srv/politics/califrecall/california091503.pdf) is the 9th's decision (pdf).

Obviously, someone's going to appeal this. Will the Supremes take the case?

ANAL, but I don't see how SCOTUS could overturn this decision, since it raises the same equal protection issues as the Bush v. Gore decision in 2000. OTOH, the Supremes can do anything.

Any lawyers care to comment on the logic of the decision? Or how SCOTUS might view it?

[Beryl_Mooncalf]

The 9th Circuit has a special place in the heart of the US Supreme Court. They probably enjoy the reputation of being the most overturned of all Federal Appellate Courts. I don't think that anyone is surprised after the orals in the matter. It was pretty evident that this was going to happen.

[John Mace]

ANAL, but I don't see how SCOTUS could overturn this decision, since it raises the same equal protection issues as the Bush v. Gore decision in 2000.

Can you explain that in more detail?

[Kempis]

The 9th is getting famous for its left-wing rulings, and though I agree with their pledge of allegiance ruling I can't see them striking down California's balloting system.

Did they make any decisions during the last race, where Governor Davis was elected by a small margin using the same system?

I think the Republicans have a good case for the Supreme court with that, combined with the "most overturned status".

It would have to be a quick turnaround though. I would also like to hear what the SCOTUS-watching dopers have to say about hat. :)

-k

California politickin ROCKS these days.

[squeegee]

Apparently, the 9th circuit decision also rests on the fact (which I wasn't aware of until I browsed today's decision) that in September of 2001, the CA Secretary of State had de-certified the punch-card system in use in those counties, and they were to be replaced by the election of March 2003.

I'll let a lawyer explain the niceties (or appropriateness) of the equal protection claims, but in summary the court felt that in the counties where the old punch-card machines were being used there was some reasonable likelyhood of disenfranchings more than a few voters by not having thier votes counted, where residents of other counties would be less likely to have a problem since they were using certified (more reliable) voting systems.

There was also more than a bit of verbage in the decision explaining that the time to fix this is now, rather than after the election when anyone seeking redress would have no remedy, since, as we all saw in FL, it's impossible to do a good count of the 'chad' ballots.

As an aside: I don't see how a decision that helps to ensure votes are counted as accurately as possible in an orderly, per the explicit proclamation of the CA Secretary of State, could be construed as a 'liberal' decision.

[Sam Stone]

My prediction - the same people who claim that the 'equal protection' concerns in the 2000 election were a sham will also claim that those same concerns are vitally important this time around.

[Rhum Runner]

Originally posted by Beryl_Mooncalf
The 9th Circuit has a special place in the heart of the US Supreme Court. They probably enjoy the reputation of being the most overturned of all Federal Appellate Courts.

No probably about it. The 9th Cir. should be split up. (Irregardless of politics, the administration of the court is out of control) But that is a topic for another day. I don't think SCOTUS will take this case, especially since there is no deadline like there was in Bush v. Gore with declaring a President. It is also hard to argue with the SofS's own declaration that the machines don't work.

[squeegee]

Originally posted by Sam Stone
My prediction - the same people who claim that the 'equal protection' concerns in the 2000 election were a sham will also claim that those same concerns are vitally important this time around.

Amazing, Sam.

I was waiting eagerly for the same folks on the right who claimed Equal Protection was paramount in 2000 to call this decision a partisan sham.

[Saxman]

To those who would decry inconsistency from those disagreeing with Bush v. Gore, consider that "equal protection" should, regardless of case, translate to the opportunity for people's votes to be counted, instead of not counted.

That said, I'm generally uneasy about comptuerized vote-counting without a paper trail (http://archive.salon.com/tech/feature/2003/02/20/voting_machines/index.html), especially given who many of these computer companies are in bed with (http://boards.straightdope.com/sdmb/showthread.php?threadid=208731&highlight=diebold). Does anyone know if California's computerized voting machines have paper records?

[hajario]

Originally posted by Saxman
Does anyone know if California's computerized voting machines have paper records?

Yes, it does. You fill in little circles with a pen and it feeds into a machine that reads the ballot. It's kind of like a Scantron test. At the end of the balloting, all of the results are sent to a central computer and the votes are tabulated almost instantly. It's a great system.

Haj

[Saxman]

That's really cool to know. Thanks, Haj.

In that case, I agree with the gist of the ruling. And my earlier comment stands.

[Age Quod Agis]

My armchair QB prediction (guaranteed wrong or your money back! . . . (not a guarantee)) is that SCOTUS grants cert., reverses the injunction, and then doesn't decide the issue until after the election.

I haven't read the decision yet, but as someone that's against the recall, I can't help but wonder what would happen if Davis and the California legislature just refused to allocate money to buy new voting machines. No more elections in California? Davis and the current legislature get to stay in office forever?

[hajario]

I'm no fan of the 9th Circuit but let's be fair. There were somthing like ten appeals files and they rejected all but one of them.

Haj

[Mehitabel]

How are people in the state reacting? Is it like you were all excited like it was going to snow but then it didn't or is it "Thank God we don't have to go through with that until March!" or just :confused: :confused: :confused:

[John Mace]

Originally posted by Mehitabel
How are people in the state reacting? Is it like you were all excited like it was going to snow but then it didn't or is it "Thank God we don't have to go through with that until March!" or just :confused: :confused: :confused:

I'm sure we'll have polls about this very soon. It's interesting, too, since as I understand it, the CA constitution states that a recall election must be held within 80 days of the cert. Personally, I think this is a bunch of BS. We've used these machines for years and one more election won't hurt. Let's get a timetable for upgrading the voting machines and get on with life. Chances are, the new voting machines will have as many if not more problems the first few times they're used anyway.

[Tejota]

Originally posted by Sam Stone
My prediction - the same people who claim that the 'equal protection' concerns in the 2000 election were a sham will also claim that those same concerns are vitally important this time around.

Damn. Can't even make a prediction without telling lies.

For the record. The liberals had no problem with the argument that there were equal protection issues in Florida.

The only problem that they had was that SCOTUS minor equal protection problems over major ones. We did not have a problem with the basic argument that there were equal protection issues in florida. Only that the equal protection issue involved in 'standardless counting' was demonstrably smaller than the equal protection issue resulting from wildly differerent normal error rates between various types of voting technologies.

Since the lack of standards in hand counting could only affect those ballots for which the machine had already failed to determine the voters intent, it is simply not possibly for the standardless hand count to have a larger effect than the basic machine-error in the first place.

And yet, SCOTUS treated the standardless counting problem as paramount, and ignored the fact that 10's or even 100's of times more ballots were discarded unread by machines in poor counties than those in rich ones.

Furthermore, the real objection to the ruleing in Bush v. Gore wasn't the equal protection argument. It's that SCOTUS chose to remedy the problems they found by preventing the counting entirely.

The identified a problem, disenfranchisment of a few, and solved it by disenfranchising even more.

And the corrupt part of the decision - stopping the count - was decided 5 to 4.

[Northern Piper]

Originally posted by Kempis
Did they make any decisions during the last race, where Governor Davis was elected by a small margin using the same system?

I think the Republicans have a good case for the Supreme court with that, combined with the "most overturned status".Courts can't just reach out and issue judgments on their own. They can only rule on cases that litigants bring before them? So, did anyone bring a lawsuit in the federal courts challenging the previous election on that basis? If not, the lack of any decision by the 9th Circuit on this point in that election is irrelevant.

[Neurotik]

I think it's straightforward. The Secretary of State decertified that method of counting ballots. Some counties would be using decertified equipment. Makes sense that it would be delayed until the certified equipment can be put in place.

[John Mace]

Originally posted by Neurotik
I think it's straightforward. The Secretary of State decertified that method of counting ballots. Some counties would be using decertified equipment. Makes sense that it would be delayed until the certified equipment can be put in place.

Only if you'd also like to violate the CA constitution:

SEC. 15. (a) An election to determine whether to recall an officer
and, if appropriate, to elect a successor shall be called by the
Governor and held not less than 60 days nor more than 80 days from
the date of certification of sufficient signatures.
(b) A recall election may be conducted within 180 days from the
date of certification of sufficient signatures in order that the
election may be consolidated with the next regularly scheduled
election occurring wholly or partially within the same jurisdiction
in which the recall election is held, if the number of voters
eligible to vote at that next regularly scheduled election equal at
least 50 percent of all the voters eligible to vote at the recall election.

IIRC, the cert happened in July/Aug timframe, so the next regularly scheduled election (March) would be outside the 180 day window.

[Northern Piper]

True, but I gather that the Sec of State's decision was simply one factor leading the 9th Circuit to conclude that holding the election with the old machines in some areas would breach the federal constitution? obviously, a provision of the state constitution has to give way to a conflicting provision of the federal constitution.

[John Mace]

Originally posted by Northern Piper
True, but I gather that the Sec of State's decision was simply one factor leading the 9th Circuit to conclude that holding the election with the old machines in some areas would breach the federal constitution? obviously, a provision of the state constitution has to give way to a conflicting provision of the federal constitution.

Possibly. But the idea that voters' US Constitutional rights are infringed by the use of punch card ballots is highly debateable, at best. Especially if you throw in the unknown factor of whether or not the new machines would actully be any better. Delaying the election beyond 80 days is absolutely, unarguably in violation of the CA constitution. Are to assume now that no state in the country can hold elections in which different types of machines are used in different voting disctricts?

So we have a very controversial opinion about US constitutional rights vs a cut and dry postition on CA constituional rights. I guess we'll see what the SCotUS says about this.

[Northern Piper]

Originally posted by John Mace
Especially if you throw in the unknown factor of whether or not the new machines would actully be any better.But, hasn't the California Secretary of State already made that decision, but prohibiting the use of punch-card ballots? In other words, the state official who has the responsibility under the state constitution to determine how state elections are to be conducted has concluded that the punch-card ballots are unreliable. Isn't that the best possible evidence that the federal courts can rely upon, in determining if the state recall will be consistent with the federal equal protection clause?

[John Mace]

Originally posted by Northern Piper
But, hasn't the California Secretary of State already made that decision, but prohibiting the use of punch-card ballots? In other words, the state official who has the responsibility under the state constitution to determine how state elections are to be conducted has concluded that the punch-card ballots are unreliable. Isn't that the best possible evidence that the federal courts can rely upon, in determining if the state recall will be consistent with the federal equal protection clause?

Well, if you use that logic, he's also the very same guy who set the date for the recall election, and he was well aware of the state of voting machine upgrades. At any rate, I believe the mandate was for the machines to be udpated before the next "regularly scheduled election", which is the presidential primary in March.

[BobT]

One of the problems was that the counties that used the punch card voting system, Los Angeles County being one of those, had entered into a consent decree with the courts stating that they would not use those types of ballots again and would only use newer methods.

So, the Secretary of State and the counties had to argue from a position that they could do something (use punch card ballots to conduct an election) after they had already acknowledged that those ballots were inaccurate and needed to be discarded.

[DSYoungEsq]

While I am at times no fan of the overly liberal 9th Circuit, and enjoy watching the Supremes hand them their heads on regular basis, this one seems much less of a reach on the part of the panel.

1) Legal Analysis: Plaintiffs want a preliminary injunction issued to prevent voting statewide until their assertion that a statewide election using punch-cards in six counties is heard in full and a remedy can be implemented. As the 9th's per curiam opinion notes, the plaintiffs have to show 1) likelihood of success on the merits of their case, 2) irreparable harm if the injunction isn't issued, and, to a lesser extent 3) a balance of hardships that "tips in their favor." I will leave to later some comment on the 9th's evolving law regarding preliminary injunctions.

As to likelihood of success, the plaintiffs are claiming that use of punch cards will result in dispropriate invalidation of votes compared to use of other accepted systems. They proffer quite a bit of evidence from experts showing this disparity. This evidence appears to be mostly unrebutted by the defendants (I am somewhat cautionary in viewing this aspect, because the 9th Circuit is notorious for writing very slanted opinions, as evidenced by the way it opened this opinion; there might be reams of evidence they simply fail to cite in the opinion). But the biggest piece of evidence in their favor is that the State itself agrees that the voting machines using punch cards are so inaccurate they shouldn't be used in elections. To do so, the Secretary of State was required by state law to determine the systems were "defective" and "unacceptable." This was done primarily because the evidence is overwhelming that punch-card voting systems disenfranchise a disproportionate amount of the electorate than other, more modern systems. The Supreme Court already ruled that use of such a system is a violation of the equal protection clause. Under the circumstances, likelihood of success is virtually certain.

As to irreparable consequences, you simply can't put the egg back in the shell with an election. One would think THAT lesson was most effectively demonstrated by the 2000 election. If the October election is allowed to procede, and then the plaintiffs successfully sue to invalidate the result on the basis of equal protection violations, what available remedy will successfully put things back where they should be? Again, this part is pretty straight forward.

Which leaves us balancing the hardships. This is where the District Judge and the 9th Circuit panel disagree. As the opinion from the panel notes, the District Court erroneously conflated issues of hardship balancing with issues of probability of success. The bottom line question is, who is worse off if they lose, plaintiffs or defendants (and, since this question affects the public as a whole, what about the effect on the people in general)?

As the 9th Circuit cogently notes, the only reason this issue is even before them is that the consent decree issued in the Common Cause I case didn't consider the possibility of a statewide election prior to March, 2004. By that time, the six counties in question are going to be using updated systems. Had the recall petition not been presented, the two initiatives scheduled for a vote in October would have appeared on the March primary ballots. Clearly, there is no significant harm in delaying the vote on the initiatives until then.

Which leaves us with the issue of complying with the California Constitution's provision on timing of recall elections. Obviously, the California people consider it important to resolve recalls expeditiously. The time frame is quite tight, no more than 80 days for electioneering. But is the need for a quick result more important than the need to make certain that the United States Constitution isn't compromised? The answer is relatively simple to dispose of by recognizing that state constitutions cannot violate the federal constitution. If the election procedes without delay, the federal constitution will be violated by use of the punch-card systems. The only issue to be determined after the fact is whether or not the result of the election was compromised. If the result WERE compromised, then the courts would be in the same mess as in 2000. The likelihood of the result in the recall being so affected is quite high, simply because of the large number of candidates and the physical size of the ballot. (Personal note: I'd be willing to bet that any system that doesn't block out making a second choice once a first one is entered will cause troubles with 135 candidates!)

In short, does California knowingly violate the U. S. Constitution simply so that it can vote quickly on its recall issue? The 9th Circuit says no.

Will the Supreme Court overturn the issuance of the injunction? If they do, I think two areas of the 9th Circuit decision are vulnerable:

First, the Ninth Circuit is attempting to make issuance of preliminary injunctions easier (on this issue, review the cases cited by the opinion regarding the standards for issuing injunctions). By watering down the requirements, the court provides public issue plaintiffs with a greater opportunity for slowing down the activities of governing bodies. Looking at the issue cynically, the liberal judges of the 9th Circuit want the conservative policies of Republican administrations to face as many obstacles as possible. Contained within the opinion at about pages 14 and 15 is language that, if accepted by the Supreme Court as properly stating preliminary injunction law, would allow plaintiffs to obtain such injunctions by showing nothing more than "severe irreparable harm." The Supreme Court has been spending the last 20 years working hard to limit attempts by the Circuits to liberalize such areas of the law. So, the Court might well issue a decision holding that the 9th Circuit applied faulty legal reasoning to the process of issuing an injunction. Of course, the panel has attempted to avoid this by addressing all the various requirements with the typical shotgun approach, establishing that, even if considered, the other elements don't support denying the injunction.

The other area of concern which the Supreme Court might address is the clash of interests regarding the time frame contained in the California Constitution. Remember that, in 2000, the Supreme Court refused to intervene in the process in Florida until after the state had completed its ministerial duties regarding vote counting. By extension, the Court here might rule that the state's interest in completing the election is more important than the need to stop a constitutional violation that only has a possibility of affecting the outcome. The theory would be that, if the election's outcome is compromised, the issue can be addressed after the fact. This would also allow the Court to issue an admonishment to the Circuits that it views unfavorably the disruption of the election process by those who seize upon constitutional issues as a proxy (not saying that is what is happening here, but you can see the opportunity for abuse that could result). The trouble with this idea is that it really goes to the heart of "irreparable harm." If the election proceeds, can there ever be a remedy after the fact? Would the courts reasonably be able to order whoever wins the recall out of the mansion and re-instate Gov. Davis until a new election can be held?

[IzzyR]

Originally posted by squeegee
I was waiting eagerly for the same folks on the right who claimed Equal Protection was paramount in 2000 to call this decision a partisan sham.There would be no inconsistency whatsoever in making this claim. It is well known that many statewide elections have different voting machines in different districts. The USSC was not ignorant of this when they made their decision, and they were not about to declare that all such states were in violation of Equal Protection. So they addressed this issue directly in the decision.

The gist of it is that if one governmental entity treats various classes of citizens differently, it is a violation of Equal Protection. If different groups of citizens are governed by different government entities, and the various governmental entities take different approaches to treating their citizens, it does not violate Equal Protection. Thus a single statewide recount supervised by the FSC that counted some ballots differently than others based on location, is in violation. A series of separate elections that use different voting machines based on different decisions of the local election boards that run the elections does not.

[DSYoungEsq]

Nonsense, IzzyR. It was widely predicted after Bush v. Gore that states would have to standardize their election procedures to avoid disparate treatment of voters depending upon location in the state. Indeed, not only is that conclusion almost mandated by the decision in Bush v. Gore (as I believe I mentioned at the time in the threads analyzing the decision), but the federal government has undertaken funding of state efforts to review and upgrade their systems, and almost all states are doing it.

A statewide election is not a series of "separate elections that use different voting machines..." It is a single contest. The results must be based upon a state elections code that treats all voters essentially the same. Allowing some counties to use antiquated and error-prone machinery does not comply with the 14th Amendment, and nothing the Supreme Court said, not even their throw-away attempt to assuage critics of the decision by "limiting" its scope, allows a contrary result.

But it was quite predictable that application of the decision by liberals to frustrate conservatives would result in conservatives being upset. :rolleyes:

[vibrotronica]

But it was quite predictable that application of the decision by liberals to frustrate conservatives would result in conservatives being upset

They have made their beds, let them lie in them.

[John Mace]

DSY wrote:
The other area of concern which the Supreme Court might address is the clash of interests regarding the time frame contained in the California Constitution. Remember that, in 2000, the Supreme Court refused to intervene in the process in Florida until after the state had completed its ministerial duties regarding vote counting. By extension, the Court here might rule that the state's interest in completing the election is more important than the need to stop a constitutional violation that only has a possibility of affecting the outcome.

It's even more complicated than just the 80 day timeframe for the election. The CA constitution allows for candidates to declare themselves no less than 59 days before the election. If the election is delayed, more candidates should be allowed to enter. And then there are already more than 300k absentee ballots that have been cast.

[IzzyR]

Originally posted by DSYoungEsq
Allowing some counties to use antiquated and error-prone machinery does not comply with the 14th Amendment, and nothing the Supreme Court said, not even their throw-away attempt to assuage critics of the decision by "limiting" its scope, allows a contrary result.But to clarify: you agree with me that the USSC did in fact make the distinction that I cited above, which would apply to the CA case. You are saying that you, DSYoungEsq, disagree with the USSC reasoning on this (finding it to be nonsense). If this is incorrect, please specify.

[Northern Piper]

Originally posted by John Mace
Well, if you use that logic, he's also the very same guy who set the date for the recall election, and he was well aware of the state of voting machine upgrades. At any rate, I believe the mandate was for the machines to be udpated before the next "regularly scheduled election", which is the presidential primary in March. Yes, but he's not a court of law and doesn't have the authority to declare that the state electoral arrangements conflict with the federal Constitution - that's the job of the federal courts. Unless and until the federal courts do so, he is bound to follow the Californian Constitution, unlike the federal courts.

And even if the mandate was for the next scheduled election, the basic point is that he appears to have agreed to that mandate based on the unreliability of the punch-card ballots. That's an important factual assessment that the federal court has apparently taken into account.

[DSYoungEsq]

IzzyR, I've answered your question in more detail in the other thread, but to summarize:

The court did NOT distinguish the California situation from the Florida situation. An understanding of the actual situation in California would aquaint one with that fact. The only way that the two cases are different is that, in Florida the lack of uniformity was the result of a lack of standards; in California the lack of uniformity is the result of a failure to finish implementing new standards designed to avoid disparate results. I doubt seriously that an imparital mind would assert that a constitutional violation depends solely on a lack of applicable standards but that existence of standards which produce disparate results is constitutional.

Now, if the suit in California was based simply on an assertion that machines in Los Angeles County are different from machines in Kern County, then yes, the Supreme Court's language in Bush v. Gore would indicate the Court wasn't intending its decision to reach that far. An attorney citing the case as precedent in such a suit would receive some hard questioning on this point; likely the most one could do is use it as persuasive authority on the subject and even then one would have to either provide data regarding actual significant disparity in accuracy or stretch the hell out of the opinion...

But, of course, in the California case, the Secretary of State has already accepted that the basic premise behind the suit is accurate; Bill Jones entered into a consent decree in 2001 in the Common Cause I case wherein the SoS failed in a summary judgement motion to have the case tossed out; presumably the court refused to dismiss the case because the court ruled that equal protection violations WOULD exist if the plaintiffs were able to prove the case they alleged, specifically, that the continued certification by the Secretary of State of VotoMatic machines for use in the state of California resulted in disenfranchising significantly more voters in counties using the equipment than in counties using more modern voting methods. So at least one trial judge was willing to apply Bush v. Gore to California, and the state didn't appeal that ruling.

By the way, we call such attempts to distinguish rulings distinctions without a difference. One of the fun games in writing briefs is to attempt to distinguish rulings you don't want applied, and expanding rulings you do want applied; of course, the other side will do the opposite. It certainly shouldn't be taken for granted that I, or any other mortal, am "correct" in this matter. But to the extent that someone attempts to read the language in the Supreme Court case as limiting its application to a statewide recount proceding under deadline with no statewide standards, that is reading too much into the language.

[Kempis]

Originally posted by Northern Piper
Courts can't just reach out and issue judgments on their own. They can only rule on cases that litigants bring before them? So, did anyone bring a lawsuit in the federal courts challenging the previous election on that basis? If not, the lack of any decision by the 9th Circuit on this point in that election is irrelevant.

Political realities what they are, I don't think the 9th would have declared the ballots invalid when a liberal Democrat was elected. There are reasonable-sounding arguments on both sides of this issue, and they would have promoted the left winning.


There's no way to prove that o'course, but dollars to doughnuts that what would have happened. I think Bush v. Gore turned out that way.

-k