Clarification/Follow-up by voiceguy2000 on 09/15/03 9:09 pm:
I am printing out the decision now from the 9th Circuit web site, and will look at it while I wait my turn at an eye appointment.

One look at the panel, led by Harry Pregerson, tells us we are in trouble.

I think, but am not sure, that Sandra Day O'Connor is the Circuit Justice for California. She would have the power to stay this ruling pending further consideration by the full Supreme Court.

I predict we will find that the Bush v. Gore decision is a major underpinning of this one -- in which case the predictions made at that time will prove correct.

Clarification/Follow-up by ETWolverine on 09/15/03 9:35 pm:
Voiceguy,

The decision by the SC in the Bush v Gore case was that the lower courts do not have the right to interfere in the normal running of the state electoral sytem, and that they could not stop the Secretary of State from certifying the election. Florida Law as written at that time was to be the basis on which to judge the election.

If we are to look at past history from the Supreme Court, they SHOULD knock down the 9CCs decision quickly. California is required to have the new election system in place by March 2004. They are not required to have it in place earlier than that. Thus there is no basis for the 9CCs decision to wait. They MUST allow the election to take place as the system stands right now based on current Law. Any other decision would be contradictory.

Elliot

Clarification/Follow-up by voiceguy2000 on 09/15/03 10:04 pm:
Nonetheless, Bush v. Gore is one of the critical underpinnings of today's decision.

I would call it Al Gore's revenge. Bush v. Gore carved out a new area of federal courts involving themselves in state election processes. Unlike the Florida recount, however, this case -- the Davis recall -- involves nothing but state election issues. In that regard, I would argue that it goes much, much further than any previous decision of this kind.

In my opinion, we are only a short step away from federal courts re-fashioning state elections into something resembling NLRB certification elections. Those are supposed to run under "laboratory conditions," and are subject to being re-run if there are technical flaws, even where it cannot be demonstrated that the flaws affected the outcome.

You read it here first. Unless the Supreme Court acts to rein in the lower federal courts, and to sharply limit its own opinion in Bush v. Gore, we are only an election or two away from having a federal court order state officials to re-hold an election because of perceived mechanical flaws. That is the legacy of Bush v. Gore, regardless of what anyone thought that decision was supposed to do. And once that happens, any notion of stability or repose in government will disappear.

It is imperative that the U.S. Supreme Court step in and prevent this from happening.

Meanwhile, Al Gore should be smiling.

Clarification/Follow-up by voiceguy2000 on 09/16/03 7:44 pm:
I certainly think the wiser course for the Supreme Court would be to stay this 9th Circuit ruling and allow the Oct. 7 recall to go forward. Some have suggested, however, that the Court may be leery of doing anything in the wake of the withering criticism it suffered after Bush v. Gore.

On balance, though, it seems to me that pulling back federal court intervention of the kind the 9th Circuit is engaging in would be viewed in a positive light -- if the Supreme Court can possibly explain why its Bush v. Gore decision did not require the 9th Circuit's result. They tried to claim that Bush v. Gore was a limited decision based on unique facts -- time to show the world that they meant this.

Sandra Day O'Connor will be a critical swing vote, as usual.

Clarification/Follow-up by ETWolverine on 09/16/03 10:24 pm:
>>>Some have suggested, however, that the Court may be leery of doing anything in the wake of the withering criticism it suffered after Bush v. Gore. <<<

Since when has the Supreme Court EVER given a rat's &*!@ what people think. I doubt they have ever worried about criticism. If they did O'Connor and her predecessors would never have allowed the 9CC to become the sham it is.

I have a feeling that O'Connor would vote in favor of overturning the 9CC in this case. Their decision reflects badly on her (the 9CC is her direct responsibility). So if she were to allow herself to be swung by that kind of bias, it would take her in favor of an overturn.

She is, in my opinion, a left wing liberal in moderate's clothing, and so her politics might lead her to vote against the overturn. But she wants to maintain the appearance of a moderate, which means she has to vote like a moderate... which again leads to an overturn.

And one thing that she has always been strongly in favor of (and rightly so) is the power and prestige of the Supreme Court. She can't allow a lower court (especially one that answers to her) to try to overturn the Supreme Court's intent of the Bush v Gore decision.

All these factors, political and biased though they may be, lead to an overturn vote. But that's just my opinion. Time will tell.

Clarification/Follow-up by voiceguy2000 on 09/17/03 12:49 am:
Actually, the Court is acutely aware of public opinion, because its legitimacy and institutional power depend on people following its decisions. It has no army to enforce its judgments, and no weapons of coercion. If enough people lose faith in the Court's integrity, it will cease to function as it is supposed to.

At a more pragmatic level, the Court is beholden to both the legislative and executive branches for its existence. While Article III of the U.S. Constitution provides that there "shall be" a Supreme Court, it does not specify how many members it will have, and gives Congress broad powers to extend or limit the Court's jurisdiction and to provide for procedural rules. The President, in turn, is the one designated to nominate justices (subject to the advice and consent of the Senate). If the legislative and executive branches gang up on the judicial branch, the judicial branch will lose.

This was graphically demonstrated in N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which addressed one of the critical components of FDR's New Deal legislation. In the years leading up to that decision, the Supreme Court had been striking down a lot of New Deal legislation on the (almost certainly correct) grounds that the measures exceeded Congress's powers under Article I. FDR responded with what came to be known as the "court-packing plan" -- he sent legislation to Capitol Hill that would have expanded the number of justices on the Court, and would thereby be able to nominate additional justices who would carry enough votes to sustain his programs.

The Jones & Laughlin decision broke with the previous ones that had struck down New Deal measures, and in this case approved the one before it. It came to be known as "the switch in time that saved the nine" (referring to the fact that there are nine justices).

I have confirmed that Sandra Day O'Connor is the Circuit Justice for the 9th Circuit (that is what I had recalled). Thus, a stay request will initially be directed to her. If for some reason she cannot or will not act on it, the justices next in line for such an application, under court rules, are: Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas. Note also, however, that under Supreme Court Rule 22, the individual justice may refer a stay application to the Court for determination. Here, however, I think O'Connor would still be the swing vote in an otherwise 4-4 split, so referring it to the full Court might be a meaningless gesture.

The sensible solution is for the Supreme Court to say, in substance, that if punch cards were good enough to elect Gray Davis, they are good enough to determine the recall election. There is no Florida-style problem in the California recall. People are painfully aware of the issues, and will be watching them closely. Moreover, there is no tight Constitutional deadline here, as there was in the case of selecting Electors as part of the Presidential election process. The remaining grounds cited by the 9th Circuit -- such as the fact that fewer than the full complement of polling places will be open on October 7 -- are routine in every special election, and no one has ever questioned that (at least not successfully) in the past.

Today's Wall Street Journal suggested that maybe the answer to uncertainties about the use of punch cards is to invalidate Gray Davis's election of last fall. That would be poetic justice.

Clarification/Follow-up by wvseagull on 09/17/03 6:39 pm:
Wolverine, the wvseagull is from West Virginia. That is what the WV is for!

Clarification/Follow-up by ETWolverine on 09/17/03 7:13 pm:
I really am not up on my West Virginia politics. Can I assume that it runs similar to DC? As in somewhat to the left?

Clarification/Follow-up by wvseagull on 09/18/03 1:50 am:
WV politics has always been strange, with an entrenched Democratic party. We have a 2 part congress, just like the Fed. Senator from each county, and Reps from districts. A few years ago a reporter passed by a Female Republican Senator in a restaurant, and asked her "Having a caucus now?" She was alone, and the only Republican in the state Senate.

Clarification/Follow-up by ETWolverine on 09/18/03 1:27 pm:
New York is pretty much the same way. An entrenched and very strong Democratic Party that tends to control city and state politics. Interestingly enough, Gov. Pataki, Former Mayor Giuliani and Mayor Bloomberg all ran and won on the Republican tickets. (Bloomberg is a Republican in name only, so I don't know if he's really an indicator.)

The situation is so bad here, that despite the fact that the Republican Convention is only 11 months away, the NY State Republican leadership can't seem to get their thumbs out of their *sses and pull together to work for a significant Republican presence in the state. This despite the fact that Long Island, Northern NY and Staten Island are all predominantly Republican. NY City and Albany are pretty much locked up by the Dems.

Holding a caucus... that's funny.

I've felt the same way more than once, living in Brooklyn. I'm a Republican (a vocal one) surrounded by Democrats. (Kinda like a wolf surrounded by a hundred sheep. I know my position is stronger, but what can I do surrounded by such large numbers?)