Wednesday, September 17, 2003
Ninth Circuit to Consider En Banc Review of Recall Ruling
Court Invites Submission of Briefs by Today; Two Judges Recuse Themselves
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday invited briefs on whether to grant en banc review of Monday’s ruling postponing the Oct. 7 statewide special election, and the state’s top election official said he would accept the invitation and ask that the panel decision be overturned.
Secretary of State Kevin Shelley plans to file a brief by today, the deadline set by the appellate court, spokeswoman Terri Carbaugh said.
“I believe it is in everyone’s best interest that this case be heard swiftly and considered thoroughly so the court can resolve these legal issues with the finality that the voters expect and deserve,” Shelley said in a statement.
Also yesterday, the court announced that Judges Stephen Reinhardt and Kim Wardlaw have recused themselves from the case, and granted a law professor and the Mexican American Legal Defense and Educational Fund leave to file amicus briefs.
No reasons for the recusals were given, but Reinhardt routinely steps aside from cases involving the ACLU of Southern California, which is spearheading the effort to postpone the election. The judge’s wife, Ramona Ripston, is the group’s executive director.
Wardlaw is a close friend and former political ally of ex-Los Angeles Mayor Richard Riordan, an active supporter of the recall whose op-ed piece attacking the panel ruling appeared in yesterday’s Los Angeles Times.
The amicus requests that
the court granted had been filed, prior to the panel decision, by
Hasen late yesterday posted his brief on a web page he devotes to election law, www.electionlaw.blogspot.com.
The Ninth Circuit’s move led the group that spearheaded the recall drive to abandon its plan Tuesday to appeal the original decision to the U.S. Supreme Court.
Thomas Hiltachk, a lawyer for Rescue
He said he would urge the appeals court to overturn the three-judge panel’s ruling. If that fails, Hiltachk said they would go to the Supreme Court.
A law professor said
yesterday’s move will keep the Supreme Court out of
“This probably means that the Supreme Court will not intervene until the appeals court says what it is going to do,” said Rory Little, a Hastings College of the Law professor who closely follows the appeals court. “It most likely delays any Supreme Court action until the court acts.”
On Monday, a three-judge
panel postponed the recall, perhaps until the March 2 presidential primary, so
voters in six counties will not have to use outdated punch-card voting
machines. By that time, those counties, including
A majority of the 26 active judges on the San Francisco-based appeals court must vote to rehear the case. The court did not indicate when it would decide.
But over the past two
years alone, it has reheard cases with 11 judges dealing with abortion
protesters’ speech rights, whether inmates can mail their sperm from prison to
procreate, whether Unocal Corp. can be sued by indigenous farmers in
Rehearing cases does not guarantee a three-judge panel’s decision would be overturned.
Still, despite pleas to do so, the court did not rehear two of its most publicized cases, one declaring the Pledge of Allegiance unconstitutional when recited in public schools and a ruling that citizens have no Second Amendment right to own firearms. Those cases are on appeal to the Supreme Court.
Though some candidates applauded the three-judge panel’s logic that the Oct. 7 date would disenfranchise as many as 40,000 California voters using error-prone punch card ballots—as the American Civil Liberties Union claimed in its lawsuit—others excoriated the judges as a liberal “laughingstock.”
Recognizing that the recall will go forward at some point, candidates for governor struggled Tuesday to focus their campaigns in the shadow of uncertainty.
Gov. Gray Davis
continued to campaign against the recall with national Democrats, appearing
with presidential candidate Sen. Bob Graham of
Lt. Gov. Cruz Bustamante, the only major Democrat vying to succeed
“All those legal matters, the place that they need to be resolved is not the political arena—they are going to be resolved in the courts,” Bustamante said yesterday before the federal court issued its latest order.
Republicans Arnold Schwarzenegger and state Sen. Tom McClintock, R-Northridge, sought the support of former baseball commissioner Peter Ueberroth, who dropped out of the campaign last week saying he didn’t have enough time to gain the support he needed.
Ueberroth ruled out re-entering the campaign if it is extended, but withheld his endorsement, saying he planned to meet with Bustamante before announcing that decision.
McClintock reiterated his
criticism of the ruling, saying it sets “a ghastly precedent” and pointing out
that the punch card has been used for more than a generation without incident
McClintock noted he did not question the results of November’s election in which he lost the race for controller to Steve Westly by 16,811 votes—many of which were cast using punch cards.
The case is Southwest Voter Registration Education Project v. Shelley, 03-56498.
Copyright 2003, Metropolitan News Company