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9th Circus reverses 3 judge panel ruling on election(12 posts)

9th Circus reverses 3 judge panel ruling on electionDougSloan
Sep 23, 2003 8:23 AM

No dissent?ms
Sep 23, 2003 10:58 AM
The Court issued a per curiam decision without an apparent dissent. See


I am not surprised by the decision. But, I am surprised by the fact that all eleven judges on the panel agreed.

Given that the Court is allowing the election to go forward, I seriously doubt that Justice O'Connor (or the entire Supreme Court if the matter is referred to it) will issue a stay.

BTW: Based on my quick reading of the opinion, I think that the en banc court got it right.
ACLU is not appealing..... nmClydeTri
Sep 23, 2003 11:57 AM
is that your opinion? ;-) nmDougSloan
Sep 23, 2003 12:28 PM
so doug, is it common for???ClydeTri
Sep 23, 2003 12:32 PM
A group of three voted to suspend the election. Then the complete court heard it again and overturned the original decision of the three. The orginal three voted with everbody else the second time around? Is that common? Did they just wise up? Not want to be outvoted 8-3? I wonder why they changed their vote.
original 3 not on en banc panel (nm)crosstrail
Sep 23, 2003 12:48 PM
The original three were not on the "en banc" panelms
Sep 23, 2003 12:57 PM
The Ninth Circuit, unlike the other circuits, really does not sit en banc, that is the entire court. Instead, because of its large size, it sits "en banc" with a randomly selected panel of eleven judges. The three judges that suspended the election did not sit on the eleven-judge "en banc" panel. Thus, the original three did not change their votes or wise up.

Twenty years ago, I clerked for a judge on another federal appellate court (the Fourth). The Court often sat en banc in that era (the court in those days was nearly evenly divided ideologically and, thus, a lot of things had to be heard en banc). To the best of my recollection, no judge who voted one way on a three-judge panel ever changed his (there were no women on the Fourth Circuit in 1983-84) mind on an en banc rehearing. I do recall a few instances where a judge changed his vote between the time that he cast it in the conference immediately after oral argument and the time that the court issued an opinion. But, those instances were rare and a conference vote is just a preliminary vote.
I'm not a former Circuit Court clerk, butcrosstrail
Sep 25, 2003 6:23 AM
I did ride my bike last night. ;) Thanks for the more complete response, ms.
Sep 23, 2003 12:31 PM
I was listening to part of the argument on the radio. It seemed to me that the judges focused upon the error rate for punch ballots vs. anything else proposed. The trial judge apparently found the cards are subject to error, but didn't compare to others. Therefore, there was insufficient factual showing of a defective system. That's just a small portion that I heard, though.

I doubt the ACLU would appeal, given the Supreme Court is likely more conservative than the 9th Circus en banc. If the ACLU can't win in the 9th, they likely would fare no better with the Supremes.

Sep 24, 2003 8:22 AM
As I understand it the court left open the possibility of a suit after the election, basically deciding that the harm of postponing outweighed the harm of potential misscounts.

A more interesting question with the voters devided close to 50-50 on whether to recall or not, would be if you could in short order (days) get enough signatures to recall whoever did win. Which would highlight the ridiculous nature of the recall process.
I supposeDougSloan
Sep 24, 2003 8:38 AM
I suppose another recall could be attempted. The law has been on the books for 60 years, I believe. I think someone mentioned here (in California) that recall efforts are made for nearly every governor, but this one was one of the few to make it to the ballot.

The recall concept was originally a populist/Democratic idea.

I don't know if I'd call it ridiculous, and my bet is that if this were a Republican governor at issue, Democrats would be raving about how valuable the recall process is...

I supposeTri_Rich
Sep 24, 2003 10:25 AM
I think there are people on both side of the aisle who think the recall process is anachronistic. If i understand correctly it was put in at the turn of the century as an antidote to the railroads running the politics of California. As such it was designed to remove corrupt governors not those whose policies were unpopular.

Also a lot of the debate on delaying the vote centered on the concept that each individuals vote should count equally. Given that this seems to be an accepted view of our legislative system how do we justify the electoral college. Without a dicussion of 2000, doesn't the system set up a situation where not all votes count equally?