Maybe I am being a luddite, but I don't quite see how the remedy of postponing the election follows from the conclusion that there is a likely equal protection violation in using punch card ballots. Why not simply enjoin the use of punch card ballots, leaving it to the state to figure out whether to obtain more modern equipment in a hurry or do it the old fashioned way, with paper ballots? While counting paper ballots may take a while, it won't take until March. Or are paper ballots now unconstitutional? Or just unthinkably old-fashioned?
I understand that state officials may prefer to wait until the March primary rather than use paper ballots, but should the administrative preferences of government officials be the basis for postponing an election -- particularly a recall election? Whether or not the state defendants seek further review, Ted Costa is a party to the case. Is there any reason to doubt that he can and will seek further review? And shouldn't his (or their) next step be an application to Justice O'Connor (as circuit justice for the 9th circuit) to extend the 7 day stay granted by the court of appeals into a stay pending a petition for rehearing in banc or pending a petition for certiorari or both? Ed Hartnett Seton Hall Don Crowley <[EMAIL PROTECTED] To: [EMAIL PROTECTED] > cc: Sent by: Discussion Subject: Re: Ninth circuit and the recall list for con law professors <[EMAIL PROTECTED] v.ucla.edu> 09/15/03 02:43 PM Please respond to Discussion list for con law professors Tough question. I'm reasonably sure that Scalia, Thomas, & Rehnquist aren't fond of this use of the equal protection clause but they won't have to explain themselves if they don't hear the case. Thus, I don't think the Court takes it. Don ----- Original Message ----- From: Howard Gillman To: [EMAIL PROTECTED] Sent: Monday, September 15, 2003 11:24 AM Subject: Ninth circuit and the recall All right, so we've all heard the news. Two quick questions, testing the current common wisdom of the list: * Will the SC intervene? * If so, how will Rehnquist, Scalia, and Thomas vote? Howard Gillman USC