It is
my understanding that at least part of the hold-up for replacing voting machines
(at least here in San Diego County) is that the FEC has not yet approved
the new system that the County wants to buy (made by Diebold, I
believe).
-----Original Message-----
From: John Noble [mailto:[EMAIL PROTECTED]
Sent: Monday, September 15, 2003 8:55 PM
To: [EMAIL PROTECTED]
Subject: Re: Ninth circuit and the recallI read Hartnett's post to suggest a mandatory injunction requiring the state-wide use of paper ballots in lieu of an injunction prohibiting the use of disparate voting methods, and I gathered that you endorsed the view. My apologies. I think though that the injunction does not read against an alternative state-wide voting technology. Although it enjoins any election held on Oct. 7, it is because that is the only remedy that was sought or offered. The Court was looking at an "up-or-down" decision on the procedures in place for Oct. 7.You suggest an injunction against the use of punch card machines, which are allegedly all that is available in the areas that suffer the alleged discrimination. But that would only disenfranchise those voters altogether, or it would amount to a mandatory injunction that the punch cards be replaced by whatever is in use elsewhere by Oct. 7, which may not be achievable.You argue that there is no serious argument that holding an election on Oct. 7 violates that 14th amendment if the voting technology used is appropriate, but the 9th Cir. opinion is premised on evidence that "forty-four percent of the electorate will be forced to use a voting system so flawed that the Secretary of State has officially deemed it 'unacceptable' and banned its use in all future elections." I started out aghast that the 9th Cir. stuck its nose into this circus, but if the Sec'y of State has deemed the punch-card ballot unacceptable, it doesn't strike me as a stretch that its use in some precincts and not others would violate the equal protection clause.John NobleAt 4:29 PM -0700 9/15/03, Scarberry, Mark wrote:In response to John's post:
The difference between a mandatory preliminary injunction and a prohibitory preliminary injunction is not at issue here, in my view. Rather the issue is whether the prohibitory prelim injunction was unnecessarily broad.
No one is saying - certainly I'm not -- that the Ninth Circuit should have *ordered* use of paper ballots by way of a mandatory prelim injunction. But the Ninth Circuit could simply have enjoined use of the punch card machines and thus *permitted* the Sec. of State to comply with California law as to the date of the election by using an alternative voting technology. Instead, the court flatly enjoined any election being held on Oct. 7.
Unfortunately, the Ninth Circuit shows as little sensitivity to the statutory timeline for voting as the Fla. S. Ct. in 2000 showed for the statutory timeline for certifying voting results. Of course, any California timeline that would violate the 14th amendment must give way. (By contrast the statutory deadlines in Florida were, IMHO, binding on the Fla. S. Ct. under US Const. Art. II, sec. 1, to the exclusion of any consideration of the Fla. S. Ct.'s views of the requirements of the Fla. Constitution.) But there is no serious argument that holding an election on Oct. 7 violates the 14th amendment, if the voting technology used is appropriate. Note that the Ninth Circuit goes out of its way to say that California really has no legitimate, nonarbitrary interest in holding the election on the schedule provided by California law. That is an arrogant approach to the provisions of California law that are designed to allow replacement of a governor without undue delay. The result is an improperly overbroad preliminary injunction.
Mark S. ScarberryPepperdine University School of Law
-----Original Message-----
From: John Noble [mailto:[EMAIL PROTECTED]
Sent: Monday, September 15, 2003 4:08 PM
To: [EMAIL PROTECTED]
Subject: Re: Ninth circuit and the recall
At 3:18 PM -0700 9/15/03, Scarberry, Mark wrote:
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.
The 4th Circuit's June decision in In re Microsoft discusses the distinction between mandatory and prohibitory injunctive relief, citing Rehnquist in Communist Party of Indiana v. Whitcomb, 409 U.S. 1235 (1972) ("While a Circuit Justice of this Court apparently has authority under Supreme Court Rule 51 to grant such relief in the form of a mandatory injunction, usage and practice suggest that this extraordinary remedy be employed only in the most unusual case. In order that it be available, the applicants' right to relief must be indisputably clear.")
The 9th Circuit's ruling is prohibitory in that it enjoins an election procedure that would allegedly violate equal protection. Ordering that the recall proceed on paper ballots would constitute mandatory relief -- a remedy that no one has even requested. The Cal. Sec'y of State might duck the injunction by agreeing to proceed with state-wide paper balloting, but the 9th Cir. shouldn't order it sua sponte.
John Noble
