The California Election Is Back On for October 7

[Brown]

Read the opinion here (http://i.a.cnn.net/cnn/LAW/resources/recall.ruling.pdf) and the story from CNN here. (http://www.cnn.com/2003/ALLPOLITICS/09/23/calif.recall/index.html)

[Brown]

A couple of points should be made about this issue in the case.

At issue was whether the election should be delayed. The underlying merits of the case were not at issue.

As to the merits, the Court suggested that there might be a valid claim based upon the Voting Rights Act, but there was insufficient likelihood of success to warrant delaying the election, especially in light of the numerous factors favoring the election going forward.

As to the Equal Protection ground based upon Bush vs. Gore, the Court made this curious remark:We have not previously had occasion to consider the precise equal protection claim raised here. That a panel of this court unanimously concluded the claim had merit provides evidence that the argument is one over which reasonable jurists may differ. In Bush v. Gore, the leading case on disputed elections, the court specifically noted: “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” 531 U.S. at 109. We conclude the district court did not abuse its discretion in holding that the plaintiffs have not established a clear probability of success on the merits of their equal protection claim.In other words, it appears that the Ninth Circuit reads Bush vs. Gore narrowly. Perhaps the Ninth Circuit is saying that the Equal Protection principles set forth by the Supreme Court apply only to counts and recounts.

Perhaps the "reasonable jurists" comment was a sly remark that the Ninth Circuit thinks that the Supreme Court was wrong in deciding Bush vs. Gore the way it did.

Note that the Ninth Circuit's "standard of review" was whether the District Court had abused its discretion, and the Ninth Circuit also summarized the basis for its ruling by saying "The standard of review is important to our resolution of this case." Basically, when an appellate court reviews a lower court ruling using the "abuse of discretion" standard, the lower court's ruling will be upheld unless it is clearly legally wrong or it is "off the wall."