Re: Ninth circuit and the recall

[Scarberry, Mark]

Time most certainly is of the essence. Once the recall qualified, Governor Davis decided to sign a bill allowing undocumented immigrants to obtain drivers' licenses, even though the bill contained fewer safeguards than a bill the Governor previously vetoed as threatening security in this time of the "War Against Terror." The legislature has begun to try to pass every bill that they think they can get the Governor to sign, to cement in place what some see as an environment that is terribly hostile to business (and therefore to employment). One of the bills is likely to make it economically infeasible to use part time workers; I wonder what will happen to my ability to hire research assistants when the university has to provide 80% of the cost of their health insurance even if they just work a few hours a week. I also wonder whether my wife, who has chosen to work part time as a nurse, will have a job if the bill is signed by Governor Davis.   Even though Sandy does not like the recall process, it was designed, together with its time limits, to allow the people to get rid of a governor who was harming the state. I'm not a historian, but an argument can be made that Governor Davis is controlled by public employee unions and other interest groups much as the state government in the early part of the 20th Century was controlled by the railroads and other business interests - a situation which gave rise to the progressive reforms, including the recall process. If this is an appropriate case for recall -- which is up to the voters to decide - then delay compounds the harm. The chance that the errors caused by punch cards will affect the outcome is very low (although it is a possibility, as we saw in 2000). Denial to all of the voters of their right to remove a governor is serious, irreparable harm.   I will now retire to read the 9th Circuit opinion before offering any further views, beyond saying that Ed Hartnett's posts are very persuasive, and that if paper ballots have to be used, then so be it. The expense will be minor compared with denial to the people of their right to hold elected officials accountable on a timely basis.   Mark S. Scarberry Pepperdine University School of Law   -----Original Message----- From: Sanford Levinson [mailto:[EMAIL PROTECTED] Sent: Monday, September 15, 2003 11:48 AM To: [EMAIL PROTECTED] Subject: Re: Ninth circuit and the recall   At 01:24 PM 9/15/2003, you wrote: 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? The Supreme Court will NOT intervene, for several reasons.  The first is that there is a possibility that the Ninth Circuit will take them off the hook through an en banc review.  The second is that time is simply not of the essence, as it (arguably) was in Bush v. Gore.  And, finally, it's not remotely clear what the partisan dimensions of delaying the election are.  I think it's ever more likely that Davis will pull through and/or that Bustamente will get more votes than Schwarzenegger.  So even if one assumes a pure attitudinalist model of the most vulgar kind (that seemed to work all too well in BvG!), it's not clear what the result is here.  Also, R,S, and T would, I think, demonstrate their true colors, in terms of constitutional approach, and point out that what *really* explained their vote in Bv.G is Article 2, which is not in play in California. sandy   Howard Gillman USC