Special Report

A Renegade Ruling

In postponing the California recall, the Ninth Circuit Court of Appeals yesterday again demonstrated why it is overruled so frequently -- and why Democrats filibuster Bush judicial nominees.

By 9.16.03

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With its ruling yesterday in Southwest Voter Registration Education Project v. Shelley -- the California recall election case -- the Ninth Circuit Court of Appeals once again demonstrated why it is overruled so frequently. In granting the voting rights group's request for an injunction to postpone next month's special election until March, the court completely misread Supreme Court precedent -- and didn't do a very good job reading California law, either.

Because counties in which 44 percent of the state's voters reside were scheduled to vote on the recall question using punch-cards, the court concluded the election could not possibly take place in three weeks. It's those hanging chads, you see, they violate the rights of voters to equal protection of the laws because punch cards are known to be slightly more prone to error than more modern -- and more expensive -- voting systems.

To support this proposition, the Ninth Circuit referred repeatedly to Bush v. Gore, stating that the issues are "almost precisely the same." To underscore this point, the court wrote: "In Bush, the Supreme Court held that using different standards for counting votes in different counties across Florida violated the Equal Protection Clause." (You can just imagine the thoughts dancing through the heads of the three-judge panel: Take that, Rehnquist Court! How do you like your precedent now?)

While this is literally true, it does not get at the heart of the majority opinion in Bush v. Gore. Contrary to the Ninth Circuit, the main focus of Bush was the Florida Supreme Court's changing of election count standards after the election was over. The Court concluded that equal protection required uniform, non-arbitrary standards for the election recounts, something Florida had not bothered to develop prior to 2000. As if foreseeing that a renegade circuit court might purposefully misinterpret its words, the Court noted that its holding was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." For those who did not get that sentence, the Court added the following paragraph:

"The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

In Supreme Court-speak, this was a red flag that the holding of Bush was limited to the unique circumstances of the 2000 election and was not an order to election officials to immediately invest millions to standardize voting methods across the states. In short, Bush v. Gore does not mean what the Ninth Circuit said it means.

Perhaps not surprisingly, the Ninth Circuit's errors do not stop there. In addition to its misreading of Bush, the Ninth Circuit also dismissed out of hand the requirement in the California constitution that a recall election be held within 60 to 80 days of the submission of sufficient signatures to place the question on the ballot. Because an exception exists for circumstances when another statewide election is fast approaching, the court decided the exception swallowed the rule. The court opined, "had the recall petition been certified just a month and a half later than it was, the recall election would have been scheduled to take place … in March 2004" instead of October 2003. But the fact of the matter is the petition was not certified a month and a half later, and no court should pretend as if it had been.

The Ninth Circuit's holding in Southwest Voter once again emphasizes what's at stake with federal judicial appointments. This court needs some new blood, the sooner the better. But with Democrats in the Senate blocking President Bush's nominees, don't expect renegades like the Ninth Circuit to be reined in anytime soon.

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About the Author

Tracy Robinson is a 2004 graduate of the George Mason University School of Law.