To clarify: I endorse Mark's reading of my post. [I hope Sandy read it the
same way; I'd hate to think that finding a point on which both Mark and
Sandy agreed was due to each of them understanding that point differently.
:)]
I was not suggesting that a court should order the use of paper ballots,
but instead that it should have (if correct on the EP point) issued an
injunction (a simple negative one) against the use of punch card ballots.
My question was, "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?"
Adjudication is not final offer arbitration (such as baseball salary
arbitration) with the court choosing the least-bad final offer made by the
parties. A court -- and certainly not a court of equity -- need not make
the binary choice between what the plaintiff seeks and what the defendant
seeks. Instead (and forgive me if I again sound old fashioned), it should
render judgment in accordance with the law, even if that leaves both
parties grumbling.
Is there anyone who thinks that paper ballots could not be printed in time?
Here in NJ (at least) paper ballots are available at polling places as a
back up if the machines fail or for use as "provisional" ballots so that
certain voters can cast ballots, with their eligibility to do so determined
later. And even if California does not have a similar practice, surely it
uses paper ballots for absentee voting. They must be printing some paper
ballots anyway; why not print a lot more of them?
In fact a large piece of paper may more readily handle the large number of
candidates than any voting machine I've ever seen.
Ed Hartnett
Seton Hall
John Noble
<[EMAIL PROTECTED]> To: [EMAIL PROTECTED]
Sent by: Discussion cc:
list for con law Subject: Re: Ninth circuit and the
recall
professors
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09/15/03 11:55 PM
Please respond to
Discussion list for
con law professors
I 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 Noble
At 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. Scarberry
Pepperdine 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
