9th US Circuit court of Appeals has blocked recall election in California

[renata]

Just heard news on NPR, based on ACLU suit

NPR says it will go to Supreme Court

Darn, wanted to post in Politics
Mods, please move it...sorry :)

[Brown]

Just saw this on CNN's web site, but there are no details. I want to know: "On what grounds?"

And I'm especially curious whether Bush vs. Gore played any role in the decision.

[headscratcher4]

The AP is reporting that the grounds are based on the Court's belief that the use of outmoded punch-cards in some districts inherently disadvantage the voters in those districts...a'la Florida...I guess it is based on the fact that there will be greater potential errors, more ballots being thrown-out thus taking the right to vote away from voters in those districts...

[renata]

Originally posted by Brown
Just saw this on CNN's web site, but there are no details. I want to know: "On what grounds?"

And I'm especially curious whether Bush vs. Gore played any role in the decision.
NPR did not give details either

It just said it was based on ACLU suit. If I recall correctly, ACLU argued that poor neigborhoods will be at a disadvantage due to punch card machines used in those neighborhoods. But there were dozens of challenges to the recall filed, I do not know which one this court heard now.

[renata]

Originally posted by headscratcher4
The AP is reporting that the grounds are based on the Court's belief that the use of outmoded punch-cards in some districts inherently disadvantage the voters in those districts...a'la Florida...I guess it is based on the fact that there will be greater potential errors, more ballots being thrown-out thus taking the right to vote away from voters in those districts...

But.. the court postpones the election, not cancels it. I am assuming it does so new equipment can be purchased?

Will a new date be set? How might Bush v Gore play into this?

[headscratcher4]

It would make sense to postpone, not cancel. From what I read in the AP, the ruling was on the problem of faulty equipment that could potentially deny votes to those using that equipment...not that the law or its implementation was wrong. Generally -- and I've not read the decision -- the remedy would be for the districts involved to prove that their equipment/voting plan works and doesn't disadvatnage voters, or to remedy the situation by implementing a voting plan that would eliminate any disadvantage to voters in that district. Nothing about the ruling, so far as I've read, says that the referendum itself is inherently discriminatory or unconstitutional.

Gore/Bush, I assume plays into this merely as a model for what can happen with ballots and voting devices of this kind... the plaintiffs, I am sure, pointed to Florida and warned the court that a similar mess was in the offing in California, and that those most likely to be hurt were minorities, etc. Further, that not acting to protect the right of these minorities to vote would result in an unconstitutional violation of voting rights protections...

[renata]

http://www.cnn.com/2003/ALLPOLITICS/09/15/recall.delay/index.html

SAN FRANCISCO, California (CNN) -- A federal appeals court has blocked the October 7 California recall, but stayed its order for seven days to allow an appeal.

The ruling from the 9th U.S. Circuit Court of Appeals follows a hearing last week in which the American Civil Liberties Union sought a postponment of the vote.

The ACLU argued that election officials should have more time to replace antiquated voting machines in several California counties.

If Monday's ruling stands, the recall vote would be moved to March 2004.
.......

[Brown]

Originally posted by renata
How might Bush v Gore play into this? Well, Bush vs. Gore is not supposed to have any real precedential value, but the impact of the decision is hard to avoid.

Suffice it to say that what the Supreme Court did was wrong from a number of legal perspectives. (For a layperson's discussion of some of the most serious legal problems with what the Supreme Court did, read "The Betrayal of America" by Vincent Bugliosi.)

One of the problems with Bush vs. Gore is that lower courts might try to follow the principles of that case in other voting disputes, thereby potentially invalidating every election in which different counting standards are applied in different districts.

[jj]

Indeterminant
California waits lost
Direction missing!

Delay good and bad
Good, votes count, no Florida
Bad, business waits.

[Brown]

Here is a link (http://i.a.cnn.net/cnn/LAW/resources/cal.recall.pdf) to the decision. Bush vs. Gore plays a prominent part in the decision.

There are several key differences between this decision and Bush v. Gore, however. For one, the court seeks to protect voters rights by protecting the rights of actual voters. (In Bush vs. Gore, Bush did not vote in Florida, so his voting rights weren't at issue.) For another, the court is concerned with protecting voting rights by actually counting votes. (In Bush vs. Gore, the effect of the decision was not to count votes.) And for still another, the person who will be perceived as benefitting from the decision is the Democratic contender. (In Bush vs. Gore, the Supreme Court bent over backwards to render a favorable decision to the Republican contender.)

[Denise]

Color me confused. Can someone explain something to this non legal literate person? How can the Supreme Court decision on the national election be used for a state election?

[BroodingSkill]

I would like to know, was the ACLU concerned about said voting machines and poor voters during the last election for Gov.? Where was their concern then?

[peptoabysmal]

Originally posted by Denise
Color me confused. Can someone explain something to this non legal literate person? How can the Supreme Court decision on the national election be used for a state election?

By going there to appeal the 9th Circuit court's decision. Anything can end up in Supreme Court if it is appealed enough times, that's what they exist for, to make the final decision.

[peptoabysmal]

Originally posted by Brown
Here is a link (http://i.a.cnn.net/cnn/LAW/resources/cal.recall.pdf) to the decision. Bush vs. Gore plays a prominent part in the decision.

There are several key differences between this decision and Bush v. Gore, however. For one, the court seeks to protect voters rights by protecting the rights of actual voters. (In Bush vs. Gore, Bush did not vote in Florida, so his voting rights weren't at issue.) For another, the court is concerned with protecting voting rights by actually counting votes. (In Bush vs. Gore, the effect of the decision was not to count votes.) And for still another, the person who will be perceived as benefitting from the decision is the Democratic contender. (In Bush vs. Gore, the Supreme Court bent over backwards to render a favorable decision to the Republican contender.)

Another factor is that this is the same court which ruled the pledge of allegience unconctitutional because of those words "under God". The 9th Circuit Court is bought and paid for by liberal / Democrat interests.

[Denise]

Originally posted by peptoabysmal


By going there to appeal the 9th Circuit court's decision. Anything can end up in Supreme Court if it is appealed enough times, that's what they exist for, to make the final decision.

Maybe I wasn't clear. I'm talking about federal laws taking precedence over a federal election. That's what I thought the Supreme court decision was about. But the California election is a state election and how does federal law pre-empt their constitution?

[Brown]

Originally posted by Denise
Color me confused. Can someone explain something to this non legal literate person? How can the Supreme Court decision on the national election be used for a state election? Well, I don't know if this is going to be less confusing or not, but here goes.

What is at issue in the 9th Circuit case is Equal Protection, guaranteed by the Fourteenth Amendment to the US Constitution. The challengers are asserting the very same legal ground that George Bush prevailed upon in the US Supreme Court. This is where the federal jurisdiction comes from.

A key difference is that the plaintiffs in California are suing on behalf of voters whose votes might not be counted. George Bush, who cast no vote in Florida, sued to prevent someone casting a cloud of "illegitimacy" upon "his election" by showing that his opponent got more votes than he did.

Now, at the time of Bush vs. Gore, there was a serious question as to whether there was any federal issue. After all, voting (as you suggest) is generally state regulated, even in national elections. Florida's supreme court was handling the voting issues according to Florida law, and there was some question as to whether a federal court had any jurisdiction at all.

But Bush asserted an Equal Protection argument, a federal issue, almost as an afterthought. Bush's Equal Protection argument was deemed by most constitutional scholars to be meritless, and the Supreme Court at first refused to hear that argument, which is a strong suggestion that the Court agreed that the argument had questionable merit.

The Supreme Court, however, subsequently decided that, not only did the Equal Protection argument have merit, but that the argument was a winner for Bush! Thus, the US Supreme Court ruled that Florida's election procedures were not purely a state issue.

Regardless of what the Supreme Court's ruling said, the Equal Protection grounds were indeed meritless. (First year law students learn basic principles pertaining to Equal Protection issues, and the Supreme Court simply ignored those basic principles without any explanation.) The Supreme Court should never have ruled as it did, but it did, and now other courts use its decision as guidance. After all, lower courts can't overrule a Supreme Court decision.

Now the Supreme Court, despite it's intention not to give its ruling the effect of precedent, is watching lower courts follow what it did. By deciding as the Supreme Court did, it now gives every voter (and even some who are not voters, like Bush) grounds to challenge every election in federal court if there is a good chance that votes might not be counted the same way from district to district.

To summarize, in its haste to decide the election in George Bush's favor, the US Supreme Court set several very bad precedents. This case is going to be a nightmare for the federal courts for years to come.

[Regnad Kcin]

Originally posted by Brown
(For a layperson's discussion of some of the most serious legal problems with what the Supreme Court did, read "The Betrayal of America" by Vincent Bugliosi.)An outstanding read!

[American]

Originally posted by Denise
But the California election is a state election and how does federal law pre-empt their constitution?


Little something we call the CIVIL WAR, babe! If any other states want to start something with this Boston yank, just try and secede!

[Brown]

Originally posted by Regnad Kcin
[Re:"The Betrayal of America" by Vincent Bugliosi"]
An outstanding read! Bugliosi does go over the top in some places, and he has added so much material to his original essay that his organization is hard to follow, but...

His points about the Supreme Court's actions being wrong are very valid. The Supreme Court tried to insert language into its decision to give it limited effect as a precedent, but how can the lower courts ignore it?

My brother-in-law is now attending his first year of law school. I have asked him to tell me how the professors handle Bush vs. Gore. After all, the Supreme Court's actions were contrary to many established principles.

For example, it used to be well-established that you couldn't simply get a stay (or other injunctive relief) merely by asking for it. You had to show a likelihood of prevailing on the merits, plus irreparable harm. Is this still the law after Bush vs. Gore? Bush got a stay without showing any irreparable harm.

It also used to be well-established that a court should not give a stay (or other injunctive relief) if doing so would effectively decide the merits of the case. Is this still the law after Bush vs. Gore? The stay granted to Bush effectively decided the case in his favor.

It also used to be well-established that standing to sue was jurisdictional. Is this still the law after Bush vs. Gore? Bush was able to maintain a suit to protect Florida voting rights, even though he wasn't a Florida voter.

It also used to be well-established that an Equal Protection case required proof of discriminatory effect. Is this still the law after Bush vs. Gore? Bush did not make any showing of any kind that the vote counting standards would hurt him worse than they would hurt Gore.

It also used to be well-established that an Equal Protection case required proof of intent to discriminate. Is this still the law after Bush vs. Gore? Bush never even suggested, much less showed, that the alleged "discrimination" was intentional.

And on and on and on. These are just some of the problems with that decision. That decision was a disgrace.

[Luke T.]

California has some voting machines which are up-to-date, and some which are not. There is no pattern to the distribution, i.e. no race is at a disadvantage when it comes to the chad type machines. There are large white areas that have them.

The ACLU and NAACP are saying that those areas that happen to have minorities and the chad type machines is prejudicial somehow, which is patently ridiculous. These same machines were used in the last Calfornia gubernatorial election, and NO ONE complained about them.

The second thing that bothers me is that the ACLU and the NAACP are saying minorities are too stupid to figure out how to vote on these machines.

I've used them. They are extremely simple.

[Luke T.]

By the way, every judge that decided in favor of the ACLU/NAACP was appointed by a Democratic president.

[Silicon]

I think one of the problems with this special election, that wasn't the problem with the election that elected Davis in the first place, is the fact of the sheer number of candidates, and the low expected turn-out.


Given the number of candidates, the plurality a few thousand votes is likely to determine our next governor.

That's less than the margin of error on our punch-chad system.

[Silicon]

Originally posted by Luke T.
By the way, every judge that decided in favor of the ACLU/NAACP was appointed by a Democratic president.

And every Justice who decided in favor of Bush vs Gore was appointed by a Republican president. Makes you think, doesn't it?

[WildCat]

Originally posted by Silicon
And every Justice who decided in favor of Bush vs Gore was appointed by a Republican president. Makes you think, doesn't it?
And every Justice on the Florida Supreme Court was a Democrat.

BTW, here in Cook County IL we still have punch cards. Not a Republican in sight either.

[corplinx]

the california aclu, blocking californian's state constitutional liberties, hilarious

and people wonder why it was a bad thing when bush called dukakis a card carrying member of the aclu

The national ACLU has come a long way, but it seems the Kali ACLU is just another democrat special interest group.

[Brown]

I find it odd that some folks are angry at the Ninth Circuit, and think that the Ninth Circuit's decision is purely political, but they were not at all angry at the Supreme Court for what it did in Bush vs. Gore.

Bugliosi's comments about this phenomenon were very damning, and I agree with them.

Bugliosi said that most Americans do not have the character to rise above their own self-interest.

For the Americans who favored Bush, they thought that what the Supreme Court did was just fine, because it meant that their candidate won. They liked the outcome, and they didn't care that the legal reasoning behind the Supreme Court's actions was atrocious. Bush supporters couldn't see past their own self-interest, and had no concern whatsoever that the Supreme Court might have issued some dreadful precedents in order to reach the desired result.

And now, when a lower court applies the same atrocious legal reasoning (the lower court can't overrule the Supreme Court, after all) to the apparent benefit of a democratic office holder, now they don't like it at all.

Well, tough for them. They didn't complain when Bush vs. Gore was decided, and they shouldn't be heard to complain now.

I didn't like what the Supreme Court did in Bush vs. Gore, and I don't like what the Ninth Circuit is doing now. But I will say that what the Ninth Circuit has done has one hell of a better legal basis than what the Supreme Court did in Bush vs. Gore.

[Luke T.]

What the U.S. Supreme Court decided in 2000 was that the Florida hand recount couldn't be selective, whereby some counties recounted by hand while others didn't.

Nothing to do with what is happening in California.

[Luke T.]

How come no one complained about these very same machines that elected Davis?

[Brown]

Originally posted by Luke T.
What the U.S. Supreme Court decided in 2000 was that the Florida hand recount couldn't be selective, whereby some counties recounted by hand while others didn't.

Nothing to do with what is happening in California. On the contrary, the plaintiffs in the Ninth Circuit case deliberately framed their case to follow the very same strategy that Bush used:Plaintiffs’ claim presents almost precisely the same issue as the Court considered in Bush, that is, whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause. In Bush, the Supreme Court held that using different standards for counting votes in different counties across Florida violated the Equal Protection Clause. 531 U.S. at 104-07. The Plaintiffs’ theory is the same, that using error-prone voting equipment in some counties, but not in others will result in votes being counted differently among the counties. In short, they contend that a vote cast in Los Angeles or San Diego is entitled to the same weight as a vote cast in San Francisco.It is true that there is no recount in California, and there are no undervotes (yet). But the Ninth Circuit repeats that the legal issues are basically the same as they were in 2000: "In this case, Plaintiffs’ Equal Protection Clause claim mirrors the one recently analyzed by the Supreme Court in Bush v. Gore...." "Rather, like the Supreme Court in Bush, we face a situation in which the United States Constitution requires 'some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.'"

The Ninth Circuit also says that it is better to resolve these problems before the election than after, and that point at least seems to make good practical sense.

[Luke T.]

Originally posted by Brown
On the contrary, the plaintiffs in the Ninth Circuit case deliberately framed their case to follow the very same strategy that Bush used:It is true that there is no recount in California, and there are no undervotes (yet). But the Ninth Circuit repeats that the legal issues are basically the same as they were in 2000: "In this case, PlaintiffsÂ’ Equal Protection Clause claim mirrors the one recently analyzed by the Supreme Court in Bush v. Gore...." "Rather, like the Supreme Court in Bush, we face a situation in which the United States Constitution requires 'some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.'"

The Ninth Circuit also says that it is better to resolve these problems before the election than after, and that point at least seems to make good practical sense.

I doubt there is a state in the Union, save Oregon, that uses uniform voting machines throughout. And I say Oregon because they use the mail-in system, which is punch-card, by the way.

There may be another state that still does mail-in votes, but I can't recall.

Not to split hairs, but the Gore team wanted recounts not in all punch card using counties, but a select few in which they thought they had an advantage.

Also, California is a state election and not a federal one.

[Luke T.]

I think the tactic used by the ACLU is indicative of a much greater problem they have in the ACLU, and that is the mindset and approach of looking at things as being disadvantageous to minorities somehow. This is a clear indication they believe minorities are dumber and more incompetent than whites. They are expressing a racial attitude that would be flamed in the largest font letters possible were it coming from the Right.

[peptoabysmal]

Originally posted by Luke T.
California has some voting machines which are up-to-date, and some which are not. There is no pattern to the distribution, i.e. no race is at a disadvantage when it comes to the chad type machines. There are large white areas that have them.

The ACLU and NAACP are saying that those areas that happen to have minorities and the chad type machines is prejudicial somehow, which is patently ridiculous. These same machines were used in the last Calfornia gubernatorial election, and NO ONE complained about them.

The second thing that bothers me is that the ACLU and the NAACP are saying minorities are too stupid to figure out how to vote on these machines.

I've used them. They are extremely simple.

You bring up a good point. I think I might prefer the old machines to the touch screen variety. I know with some of those touch screens, if you aren't right on the money with your finger, you get a selection you didn't want.

[peptoabysmal]

Originally posted by Luke T.
How come no one complained about these very same machines that elected Davis?

Yeah, Davis was re-elected after Bush vs. Gore. I'm beginning to think that the only time this gets questioned is when a Democrat loses.

[nightwind]

The ultimate stupidity to me in this situation is that these machines, which to me have been pretty welll proven flawed were in place.

How many other states have these, who have not learned from the last presidential election. Good grief.

Are other states still using these? I can see the courts point in this matter. If it went to the wire, we would again be analyzing "hanging chads". Arrrrrrrrrggggggggghhhhhhhh!:confused:

[a_unique_person]

Originally posted by Brown
Bugliosi does go over the top in some places, and he has added so much material to his original essay that his organization is hard to follow, but...

[...]
It also used to be well-established that an Equal Protection case required proof of intent to discriminate. Is this still the law after Bush vs. Gore? Bush never even suggested, much less showed, that the alleged "discrimination" was intentional.

And on and on and on. These are just some of the problems with that decision. That decision was a disgrace.

A legal mind talking techie is a thing of wonder and awe.

[Silicon]

Originally posted by peptoabysmal


Yeah, Davis was re-elected after Bush vs. Gore. I'm beginning to think that the only time this gets questioned is when a Democrat loses.


Actually, the ACLU and Common Cause filed a similar suit back in 2001 to de-certify the punchcard ballots, arguing that these old votamatic systems needed to be phased out.

As a result of the suit, California was forced to phase out the Votamatic punchcards by 2004.

Nobody foresaw this special election happening before the upgrade.


See:
Common Cause Wins Court Victory Against Secretary of State: Punch Card Voting Machines Must Go Before 2004 Presidential Elections


http://www.commoncause.org/states/california/archives/punchcard.html


Oh, and touch-screens aren't the requirement. There are a number of methods they can use that aren't touch-screens:

http://us.news2.yimg.com/us.yimg.com/p/net/20030916/capt.vmethods.jpg



Again, the main point they make is that the margin of error may very well be larger than the margin of victory.

We're talking about systems that 44% of Californians will be forced to use. Which means an estimated 40,000 ballots will have to be discarded as unreadable.

The victor in this race is likely to win with a smaller lead than 40,000 votes.

You better believe that WHOEVER loses will sue for a recount. Better to count it correctly the first time.

[Brown]

Originally posted by Luke T.
I doubt there is a state in the Union, save Oregon, that uses uniform voting machines throughout.Right. And of course voting systems differ from state to state, too. Since most elections are local, it only makes sense for local jurisdictions to be responsible for the voting machines and voting techniques. Statutes passed by Congress support the notion that voting techniques are to be a local concern and are to be basically regulated by the states. Handling the adminstrative aspects of voting is basically a matter of state law.

Which is all the more reason that the Supreme Court's action in favor of Bush was insanity. Voting is not uniform nationwide (and I don't believe it ever has been). It is not uniform from state to state, from county to county, from city to city, or from district to district.

But the Supreme Court messed that all up by saying that differences in voting techniques create an Equal Protection problem. By saying that employment of different counting methods creates an Equal Protection problem, the Supreme Court in effect ruled that every presidential election we've ever had has been unconstitutional. (I guess we're lucky that nobody challenged any of the previous elections in court on Equal Protection grounds.)

Not to split hairs, but the Gore team wanted recounts not in all punch card using counties, but a select few in which they thought they had an advantage.Actually, Gore said that he would be be happy if Bush wanted a recount in all of the other counties. Gore had no problem with a full recount, and he was not going to fight a full recount in court. Bush wanted no recount at all. Also, the notion that Gore's recount was somehow selective was not really a basis for the Supreme Court's decision.

Also, California is a state election and not a federal one. Well, based upon Bush vs. Gore, if there's an Equal Protection problem, that makes it a federal issue.

Now, if you think that all this is crazy, I agree with you! But I don't blame the Ninth Circuit. The blame rests squarely on the Supreme Court for issuing extremely unwise decisions.

[peptoabysmal]

The 9th Circuit wants to move the election to March, when the Democratic Presidential Primaries are in full swing here and Democrats will be at the polls in full force. Odd coincidence, that.

[Vorticity]

Originally posted by peptoabysmal
The 9th Circuit wants to move the election to March, when the Democratic Presidential Primaries are in full swing here and Democrats will be at the polls in full force. Odd coincidence, that.
Perhaps I'm wrong, but isn't the Republican primary also on that same day? According to the web site of CA's Sec of State, it is:
http://www.ss.ca.gov/elections/elections_b.htm

[Silicon]

Originally posted by peptoabysmal
The 9th Circuit wants to move the election to March, when the Democratic Presidential Primaries are in full swing here and Democrats will be at the polls in full force. Odd coincidence, that.


It's not a coincidence. The date of March was set on February 12, 2002. Read my posted link.

That was the date agreed upon as the date by which the old punch-cards would be eliminated.

Did you read my link, Pepto?