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Monday, September 22, 2003



Watching the California recall oral argument That's right. I am a total geek and I watched it online. Some initial reactions:

Although most of the press attention in this case has focused on the Bush v. Gore equal protection issues, because that was the only question that the three-judge panel evaluated, it sounded to me that the Voting Rights Act challenge to the recall might have a better chance of success. Perhaps I am just saying that, however, because I don't understand those issues as well as I understand the equal protection arguments.

The ACLU had Professor Tribe argue the constitutional issues, and had Mark Rosenbaum of the California ACLU argue the Voting Rights Act issues and possible remedies.

Professor Tribe said that, "We are not suggesting that perfection is the standard." Tribe also wouldn't take the position that they needed to have the best technology available. He depended instead on the methods in some counties being "deemed deficient" by the Secretary of State. Tribe conceded, however, under questioning by Judge Kozinski, that the Secretary of State did not make a finding about the problems of punch-card machines, so it is unclear to me (since I haven't read the briefs) what his standard was for believing that punch-card ballots are a clear constitutional violation.

There were lots of interesting distinctions being made by members of the panel between Bush v. Gore and the recall case: some level of uniform standards for recounts in California, and a specific line in Bush v. Gore saying that they weren't saying that all local election boards needed to choose to run their elections in the same ways.

Judge O'Scannlain made a big deal about the standard of review. He argued that the standard for determining whether the district judges

Kozinski made a big deal about not being able to really evaluate the accuracy of a voting technology if you don't look at the accuracy rates after the recount. He also found significant the existence of no actual data about the new technologies.

There were a variety of other problems that some judges asked about, including some heavy discussions about res judicata issues.

I think the best line of the argument was clearly from Judge Kozinski: "Do we look at whether the judge got it right, or do we just say 'close enough'? It is government work after all."

And, at the end of the oral argument, Mark Rosenbaum of the ACLU said "this circus, uh, circuit" and the whole room burst out in laughter. I believe this is the first time that the ACLU has gone on record criticizing the Ninth Circuit.

So, of course, I must make some (relatively) uneducated prognotication. First of all, I think that the second letter here is probably correct in predicting that Judge Kozinski is likely to write an opinion in this case, and will probably work very hard to make sure that his opinion is the majority (or at least plurality) opinion. He very much controlled the questioning of pretty much every attorney.

Howard Bashman wrote here that, "Typically, those judges who believe that the law does not mandate postponement of the election will actively question the attorney seeking a postponement, and the judges who favor a postponement will actively question the attorneys opposing a postponement." If this is true, then the three judge panel's decision to delay the recall solely on the equal protection issue is very much in peril. The most aggressive questioner of the two attorneys defending the recall was Judge Kozinski, and the conventional wisdom going into the oral arguments was that Kozinski was unlikely to support the previous Ninth Circuit panel decision.

However, I would hardly say that Kozinski looked likely to support postponement. He asked some very tough questions when Rosenbaum and Tribe were arguing. This, combined with the absence of any other judge really going after the attorneys supporting the recall, Douglas Woods or Charles Diamond, makes me speculate that there might not be any real hard-core supporters of postponement on this panel that many already had considered to be relatively conservative.

My sense from the questioning is that the best realistic result that the ACLU and the other plaintiffs can hope for is for the panel to decide that the district judge applied the law incorrectly regarding the Voting Rights Act question, and to send it back down for new proceedings on that issue. But that prediction and fifty cents will buy you a newspaper when the actual decision is announced.

UPDATE: Howard Bashman also observed that Kozinski seemed to give more weight to the Voting Rights Act claims.


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