Thursday, September 18, 2003

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The Ninth Circuit's petulance

There's lots to read out there about the 9th Circuit Court of Appeals decision to delay the California recall election. Bruce Ackerman's New York Times op-ed from yesterday, and Robert Hochman's Chicago Tribune op-ed today both offer legal explanations for why the 9th Circuit ruling is such a bad decision.

However, the most honest thing I've read on this is Dahlia Lithwick's analysis in Slate of the motivations behind the decision. The key grafs:

The real problem with all this analysis is that the high court expressly disallowed this kind of application of Bush v. Gore as precedent. With its now-famous disclaimer, "our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the court explicitly limited the reach of the equal protection application to the 2000 election. The Supreme Court, seeking to wade into a political catfight yet indemnify itself from ever having to do so again, insisted that their holding was good for one ride only.

The problem was that it was only a one-way ride—in favor of George W. Bush, and a lot of enraged liberals have spent the intervening years grinding their teeth over the unfairness of it all. We couldn't riot, we couldn't hunger strike. And there was no opportunity for payback; no opportunity to really stick it to the Supremes for rigging the election and using bad law to do it. Until now.

There's really only one way to read the panel's decision from Monday. It's a sauce-for-the-gander exercise in payback. Pure and simple. The panel not only refused to accept the Supremes' admonition that the nation would not be fooled again; it refused even to address it. Applying Bush v. Gore again and again in the unanimous opinion, the judges told the high court that it has no power to declare a case a one-ride ticket and defied the court to step in again to tell them otherwise....

You can't read the 9th Circuit panel's decision without recognizing that it is neither brilliant nor subtle. The court did not need to halt the whole election to achieve electoral fairness. It could have enjoined punch cards, demanded all paper ballots, recommended more polling places, or punted back to the California secretary of state to suggest something other than the existing disparate systems. But the court went so much farther. They shocked the whole country by halting the entire recall. Why? Reading the opinion, it's hard to escape the fact that the court seems to take pleasure in applying the broad and indefensible legal principle laid out in Bush v. Gore even more broadly and indefensibly. This wasn't just a liberal panel trying to prop up an embattled Democrat. The 9th Circuit isn't necessarily political, even where it's ideological. No, the more likely explanation for the panel's decision is that the court, which has been ridiculed, reversed, and unanimously shot down by the Supremes at rates that exceed (although not by much) any other court of appeals, just wanted this one sweet shot at revenge. This time, said the panel, it's personal.


UPDATE: Drezner gets results from Robert Hochman, who e-mails this addendum to his Tribune op-ed:

Dahlia's principal point was exactly what I was trying to capture (in an exceedingly tight way) when I said that the 9th Cir. was offering a poor reading of Bush v. Gore to "stick it to Republicans for the supposed evils of Bush v. Gore."

I, too, think that the Supreme Court made a terrible mistake, one with far reaching consequences, in deciding to base its Bush v. Gore decision on the Equal Protection Clause. The Article II rationale, adopted by the concurrence, would have been better. And the reason, in my view, has everything to do with the core point of my piece: it's a bad idea to have judges interfering in election procedures, either during a campaign or while the votes are being counted. That could have been the theme of an Article II decision. The Florida Supreme Court adopted vote counting procedures out of whole cloth, casting aside established state election procedures. Article II prohibits this only in the context of a Presidential election. But the broader point could have been praised and used as a reason for reading Article II that way.

And had the Supreme Court taken this route, it would have made less sense to accuse the Justices of having "interfered" in the election. Rather, the whole point would have been a higher court (the US Supreme Court) preventing a lower court (the Florida Supreme Court) from interfering in an election. The Court would have been accused of interfering anyway, but those of us who think that what the Florida Supreme Court did was an abomination would have been given stronger ground to defend the US Supreme Court.


posted by Dan on 09.18.03 at 11:53 AM


Dahlia Lithwick has it exactly right. Bush v. Gore was a lousy decision, and the 9th Circuit's initial application of it isn't much worse. But it's time to put the toothpaste back in the tube.

posted by: Jim Clark on 09.18.03 at 11:53 AM [permalink]

I'm no lawyer, nor would I ever aspire to be one. However, I seem to recall that federal judges can be removed from office for bad behavior, not just high crimes and misdemeanors. If this is the sort of garbage our judiciary indulges in, it may be time for Congress to start exercising that perogative.

posted by: Ray on 09.18.03 at 11:53 AM [permalink]

Remove them? Oh please. Revenge? They are just following precedent set by the Supremes. The claim of one-time only (to get what 'we' the majority want) always struck me as political and bogus. I am no lawyer but isn't precendent a big deal with Supreme Court decisions?

But on the other hand--- the toothpaste back in the tube wouldn't be a bad idea. But with things like the TX redistricting and other partisan activities--- why should democrats unilaterally disarm? A conundrum to be sure.

posted by: Mark on 09.18.03 at 11:53 AM [permalink]

I read the various new filings in this matter last night, at:

The critical ones are by former California Secretary of State Bill Jones and the County of Los Angeles. The PDF URL's for those are:



Jones' submission establishes that the Pregerson panel's ruling is based on material mis-statements of the evidence. This makes it absolutely certain that the 9th Circuit will order en banc review.

LA's submission establishes that the remedy ordered by the Pregerson panel is impossible to implement. The present record does not support the remedy ordered. Making such calls is my day job. This would result, in a more normal case, in reversal with instructions to reopen the case to hear new evidence. Here there isn't time to do that prior to the October 7 election.

Ergo, en banc review is certain, and complete reversal is almost certain.

posted by: Tom Holsinger on 09.18.03 at 11:53 AM [permalink]

I agree the equal protection angle of Bush v. Gore stinks - unfortunately, there wasn't a majority for the more appropriate holding, namely that the Constitution doesn't permit courts to rewrite the election code after the fact to suit their fancy.

I notice the outrage directed at the Supremes is never accompanied by so much as a peep of protest about the Florida Supreme Court's role in the fiasco.

I can't say I'm suprised - after all, the central canon of liberal jurisprudence is to manipulate the law & facts to get the result you want, which makes the Florida Supremes' conduct entirely unobjectionable ... at least, to those who gripe about Bush v. Gore.

posted by: BradDad on 09.18.03 at 11:53 AM [permalink]

Dahlia is too kind and Mark is entirely right. The court can say their holding isn't a precedent, but it is. Suppose the judges of the 9th Circuit are entirely conscientious, just trying to apply the law to the facts presented. What other law is more pertinent than Bush v. Gore? How else could they rule?
Even if, as admonished to, the 9th circuit panel had tried to ignore Bush v. Gore, remember that the Supreme Court, applying the law in the case from Florida in December 2000, reached a conclusion based on equal-protection considerations. Who's to say the circumstances in California in September 2003 were so different as to justify a contrary conclusion?
It was the Supreme Court mashed its hand down on the tube. Their mess. The Ninth Circuit was not playing beastly games; the Supreme Court was.

posted by: Lawful albeit Awful on 09.18.03 at 11:53 AM [permalink]

Everyone seems to forget that the equal protection rationale was accepted by seven justices including Souter and Breyer, who dissented based on remedy. In fact, Justice Souter's dissent pretty presciently distinguishes the California recall situation from the Florida recount situation. So far as I can tell, the Ninth Circuit's decision doesn't address Souter's opinion.

Souter wrote:

It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter’s intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as “hanging” or “dimpled” chads). . . . I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters’ fundamental rights. The differences appear wholly arbitrary. (at 38-39)

posted by: NYer on 09.18.03 at 11:53 AM [permalink]

Can someone explain slowly why the Fla Supreme Court was "rewriting established election procedures"? Florida had a recount statute! It was **Bush** who filed suit from the beginning to enjoin hand recounts, **Bush** who arranged for a riot to stop hand recounts, and **Bush** who worked to delay the recount as much as possible so that it couldn't be completed by the federal deadline.

If you don't agree with this analysis, explain what exactly you felt the recount provisions in Florida Law meant.

Incidentally, Washington State law used to provide for automatic hand recounts in close elections. It's to ex-Sen. Slate Gorton's credit that he went out of office quietly, since he lost by less than the margin. Maybe he could have gotten five votes from the Supreme Court, too.

As far as Lithwick's analysis, it's spot on, and my only regret is that it isn't closer to the 11/04 election where we can finally end the usurpation.

posted by: Andrew Lazarus on 09.18.03 at 11:53 AM [permalink]

My suspicion is that the fix is in, anyway. Adam Nagourney had a piece in the Times yesterday explaining that, amongst the Presidential candidates, this decision was a disaster. "Give us oxygen!" Instead, California's recall will suck up energy, attention, and money.

CA's primary date is a super Tuesday - 11 states, including NY and Texas, also vote, and the winner that day may be the nominee, But who will know, since the recall winner will be on the cover of Time.

posted by: Tom Maguire on 09.18.03 at 11:53 AM [permalink]

Robert Hochman's point is perfect. The Supreme Court's fondness for judicial supremacy and their consequent unwillingness to hurt the reputation of even a rogue state court really undermined the quality of the Bush v. Gore opinion.

Dahlia Lithwick's observation about the petulance of the 9th Circuit is one I made in the comments to Dan's earlier post. Yet, having looked back at the opinions, it's clear the 9th Circuit went far beyond anything in the Souter-Breyer-Kennedy-O'Connor written opinions. They are pushing the whole Baker v. Carr (one person one vote) line to an impossible extreme, which if taken seriously would make all elections unconstitutional. For no election could be held in which every person everywhere had an absolutely equal opportunity to "have his vote counted."

Imagine how the Democrats would react if a Republican panel delayed the Nov 04 election in Oct 04, with Bush trailing in the polls, and said the election could not be held until uniform nationwide voting standards had been met -- and therefore Bush would have to continue indefinitely as President. Everyone would agree this was a constitutional crisis and a treasonous usurpation of power. The 9th Circuit decision, in short, was lawless and sets a very dangerous precedent.

posted by: pj on 09.18.03 at 11:53 AM [permalink]

The 9th Circuit decision, in short, was lawless and sets a very dangerous precedent.

No, it follows a very dangerous precedent.

posted by: Andrew Lazarus on 09.18.03 at 11:53 AM [permalink]

The 9th Circuit decision, in short, was lawless and sets a very dangerous precedent.

No, it follows a very dangerous precedent.

posted by: Andrew Lazarus on 09.18.03 at 11:53 AM [permalink]

Its been a while since Florida, and I've tried to ignore it since, but didn't the Florida Supremes overrule a specific, explicit legal deadline for recounts?

I also seem to recall that their first decision was so vaguely justified that the US Supremes basically sent it back with a "please tell us how you came to this decision" note attached, which they proceeded to ignore.

And Andrew: Even though you don't like the Bush v. Gore precedent, can you honestly argue that this ruling does not extend that precedent further, and in a way that (if it stands) would essentially allow for the indefinite postponement of all U.S. elections at judicial whim?

posted by: Craig on 09.18.03 at 11:53 AM [permalink]

The followup about "those of us who think that what the Florida Supreme Court did was an abomination . . ." makes clear that this whole business was an unprincipled political issue, presumably to make sure that W was installed as president of the united states.

I don't mind disagreement with the Florida Supreme Court, but it is clear that the Court did what Chancellors do. It saw a clear wrong --- a whole mess of votes that weren't counted --- and fashioned a rememdy to see to it that the votes were counted. They might have been correct and they might have been wrong. But they were acting like a Court.

But five members of the Supremes, on the other hand, in cutting off counting on saturday night, so the legitimacy of the Bush win couldn't be questioned, and then cutting off the counting permanently ON A ONE TIME, NO PRECEDENT BASIS, were doing what courts do NOT do. They enacted a strictly results-oriented rememdy that favors Bush only, and attempted to make sure that no one else could do it again.

posted by: jonesy on 09.18.03 at 11:53 AM [permalink]

Since we are going to reopen the Florida brawl, I would like to make two points.

First, my impression was that the Dems had in mind "Remember Florida" as a big rally cry for Nov 2004. If Dem judges are now arguing that Florida was correct, doesn't that sort of undermine the message?

Secondly, I have to land firmly on the side of PJ in the "created-extended" debate above. Florida was a debacle, but it was AFTER the voting, and was only significant because the vote was so close.

If the precedent was extended to delaying elections, as in California, and the SC simply delays indefinitely the 2004 election, we will never know whether Dean could have won, lost, or tied.

If Dean wins big in 2004, and the SC holds up the counting in one or two states for "Equal Protection" reasons, there is at least a chance it won't matter.

The Before versus After is the key distinction.

posted by: Tom Maguire on 09.18.03 at 11:53 AM [permalink]

There has been quite a bit of debate in legal circles lately -- I'm too lazy to find something to link, but trust me -- about the legitimacy of appellate courts issuing "do not publish" opinions. By rule, courts often say that such opinions may not be cited as precedent, but they're oftentimes easily available online. The objection to this rule is: You appellate courts owe everyone equal justice and equally careful consideration, even if that doesn't always result in an equally long or complicated written opinion; and if you are applying the same standard of care to all cases, you should have no qualms about any of your written opinions being citeable as precedent.

I agree with this criticism, and think that the practice of "do not publish/don't cite as precedent" opinions encourages sloppiness. And I think that by definition, anything that's important enough for the US Supreme Court to choose to hear and to write upon ought to be done with sufficient care that it should be useable as precedent in the future.

There may still be times when it's appropriate for a court to say, "These were really unusual circumstances. We wouldn't expect to see these circumstances more than twice in a century. Be careful about coming to us with the claim that your case is the same as this one, because it probably won't be." But that's different than saying, "We're making a rule for this case only."

Now, having said that -- I thought at the time, and still think, that what the US Supreme Court did in Bush v. Gore was essential, and essentially correct. I'd have preferred that they have relied upon the Article II ground, but Justice O'Connor -- the concensus-builder and the glue in the middle of the Court, such as it is -- went for equal protection to pick up more votes. Sometimes she seems to think she's still a state senator in Arizona instead of a Supreme Court Justice.

posted by: Beldar on 09.18.03 at 11:53 AM [permalink]

I don't know if I can write slowly enough for Andrew, but the case that was settled in Bush v. Gore was filed by Gore, not Bush. And the US SCt itself described how the Florida Supreme Court rewrote Florida's procedures in Bush v. Palm Beach Canvassing Board. That appellate case was an appeal of an action brought not by Bush but by the Volusia County Board and joined by Palm Beach, Gore and the Florida Democratic Party.

All of this can be found in the procedural history of the relevant cases.

Lastly, there is a difference between a "non published" opinion and the kind of opinion in Bush v. Gore. The latter was a per curiam opinion ( itself indicating limited precedential value ) which by its own terms expressly limited the opinion to the facts of the case before it. The Ninth Circuit was being very dishonest in citing to it for the California recall election.

posted by: Robin Roberts on 09.18.03 at 11:53 AM [permalink]

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