Re: absentee ballots? and "goose and gander" constitutional politics

[Jonathan H. Adler]

It seems that the Ninth Circuit will have the opportunity to follow Prof. Gillman's advice and adopt Prof. Solum's analysis.  The wires are reporting that the Ninth Circuit has granted en banc review of the case.

 

JHA

 

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Jonathan H. Adler

Assistant Professor of Law

Case Western Reserve University School of Law

11075 East Boulevard

Cleveland, OH 44106

ph) 216-368-2535

[EMAIL PROTECTED]

-----Original Message-----
From: Discussion list for con law professors [mailto:[EMAIL PROTECTED]On Behalf Of howard gillman
Sent: Tuesday, September 16, 2003 1:19 PM
To: [EMAIL PROTECTED]
Subject: Re: absentee ballots? and "goose and gander" constitutional politics

Absentee ballots were an issue in the Florida litigation.  Note, though, that in Florida the absentee ballot issue was tied in (politically) to the rights of our brave men and women in the armed services.  Note, then, how the three judges handled that issue in this case:  "Further, many members of the armed forces and California national Guard did not fill out absentee ballot requests because they did not expect to be overseas for this length of time and did not anticipate a special election.  A short postponement of the recall election will serve the public interest by permitting California men and women who are serving our country overseas and who did not anticipate an October election more time to request and submit absentee ballots, thus allowing them to enjoy one of the fundamental rights for which they put themselves in harm's way -- the right to vote."

I guess this means that the same folks who decried Gore for being anti-military in 2000 should (apparently) denounce October recall supporters for being anti-military.

It seems obvious that this is classic "good for the goose is good for the gander" constitutional politics.  I agree with Eric Hasen that this is a straightforward application of Bush v. Gore (http://electionlaw.blogspot.com/).  There are a lot of complaints one can have about the decision, especially about whether we should be SO fastidious about ensuring the equal treatment of ballots, but then again, the Bush v. Gore majority was also improbably fastidious about that issue; the main difference is that the 9th circuit now has precedent for insisting on that level of improbabe fastidiousness, while the Bush v. Gore majority did not. 

Politically, it seems to me that the best strategy for Republican judges on the 9th circuit is to jump on the sort of analysis offered by Larry Solum on the res judicata issue (see http://lsolum.blogspot.com/) -- that is, the issue was litigated in Common Cause I, there was a final judgment wherein the parties agreed to have punch-card systems phased out starting in the March 2004 election.  If they decide to overturn the injunction it would probably be on these grounds (and if the 9th circuit judges take care of it then the Supremes don't have to worry about it).  That way they get to sidestep the thorny question of the precedential value of Bush v. Gore. 

Howard Gillman
USC

----- Original Message -----

From: Lynne <[EMAIL PROTECTED]>

Date: Tuesday, September 16, 2003 9:50 am

Subject: Re: Paper ballots?

> On the paper ballots vs punchcard ballots question--For those of us who are
> absentee voters in the affected counties (ie, the counties that specialize
> in hanging chads, and Santa Clara is one of 'em. . .), problems of getting
> *new* forms printed and mailed to all absentee voters within next 2 weeks
> arise. And wasn't the absentee ballot question an issue in the Florida
> litigaton?