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?