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Monday, September 15, 2003

Ninth Circuit screams: "Reverse us again!" The U.S. Court of Appeals for the Ninth Circuit ruled today that the California Secretary of State cannot hold any election on October 7th because some counties would still be using those dreaded punch-card machines. That means that the recall election and the vote on the two ballot propositions would have to take place on March 2, the date of the Democratic presidential primary, instead.

As an interesting side note from How Appealing, Justice O'Connor, the justice in charge of handling emergency appeals from the Ninth Circuit, is currently in Bahrain. Good timing.

There are already a couple of interesting posts on this topic at The Corner.

Steve Hayward writes:

We should never be surprised at the Ninth Circuit's depredations. It has been a rogue court for more than 20 years. We shall have to await a close reading of the decision by our legal friends, but one question that comes to mind is whether the holding of this court is that punch card ballots are ipso facto unconsitutional, based on the Supreme Court's holding in Bush v. Gore in 2000.

There were some of our legal scholars (like Mike McConnell) who worried in December 2000 that the Supreme Court's use of the equal protection argument as it applied to the counting of punch card ballots in Bush v. Gore would come back to bite conservatives. Setting aside the constitutional wisdom of the California recall, this appears to be the specter that McConnell worried about. It will be interesting to see how the Supreme Court handles the appeal, i.e., whether it modifies Bush v. Gore and repudiates the Ninth Circuit once again, or whether it punts entirely, not wishing to be drawn into another political mess. If the Supreme Court overrules the Ninth Circuit, it will add fuel to the fire of the left that there is a giant GOP conspiracy to steal elections (even though this is nonsense).

And this, from Roger Clegg, pretty much tells the whole story:

A quick look at the Ninth Circuit’s decision in the California recall case is enough to make one worry about its objectivity and care. Its full summary of Proposition 54 is that it “would prevent the State from collecting or retaining racial and ethnic data about health care, hate crimes, racial profiling, public education, and public safety.” And there are two part II’s in the opinion.

Power Line and Mitch Berg both comment on the ruling.

And then there is this from ScrappleFace:

The 9th U.S. Circuit Court of Appeals issued an order today reversing the results of all elections which used the troublesome punch-card ballots. The ruling overturns voter decisions going back to 1964, when the faulty ballots were first employed in two counties in Georgia.

Bill Clinton, who is now neither a former president nor a former governor, said the ruling is consistent with the court's decision earlier today to delay California's recall election for similar reasons.

"To be fair, if you're going to say punch cards can't produce a valid result, then you have to nullify all results involving punch cards," said Mr. Clinton. "So, I'll just go back to what I was doing before I became a know... farming tobacco. Wait, that wasn't me. That was that Gore fella."

Of course, George Bush will remain President, since the 2000 election was decided by the Supreme Court and the lower court cannot overrule its verdict.

UPDATE: Arnold Steinberg already has a full piece up on National Review Online predicting that the decision will be overturned by Wednesday.


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