-----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?
