Ninth Circuit to Consider En Banc Review of Recall Ruling

Wednesday, September 17, 2003

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Ninth Circuit to Consider En Banc Review of Recall Ruling

Court Invites Submission of Briefs by Today; Two Judges Recuse Themselves

From Staff and Wire Service Reports

The Ninth U.S. Circuit Court of Appeals yesterday invited briefs on whether to grant en banc review of Monday’s ruling postponing the Oct. 7 statewide special election, and the state’s top election official said he would accept the invitation and ask that the panel decision be overturned.

Secretary of State Kevin Shelley plans to file a brief by 2 p.m. today, the deadline set by the appellate court, spokeswoman Terri Carbaugh said.

“I believe it is in everyone’s best interest that this case be heard swiftly and considered thoroughly so the court can resolve these legal issues with the finality that the voters expect and deserve,” Shelley said in a statement.

Also yesterday, the court announced that Judges Stephen Reinhardt and Kim Wardlaw have recused themselves from the case, and granted a law professor and the Mexican American Legal Defense and Educational Fund leave to file amicus briefs.

No reasons for the recusals were given, but Reinhardt routinely steps aside from cases involving the ACLU of Southern California, which is spearheading the effort to postpone the election. The judge’s wife, Ramona Ripston, is the group’s executive director.

Riordan Ally

Wardlaw is a close friend and former political ally of ex-Los Angeles Mayor Richard Riordan, an active supporter of the recall whose op-ed piece attacking the panel ruling appeared in yesterday’s Los Angeles Times.

The amicus requests that the court granted had been filed, prior to the panel decision, by Loyola Law School’s Richard Hasen and by MALDEF, both supporters of postponing the election.

Hasen late yesterday posted his brief on a web page he devotes to election law, www.electionlaw.blogspot.com.

The Ninth Circuit’s move led the group that spearheaded the recall drive to abandon its plan Tuesday to appeal the original decision to the U.S. Supreme Court.

Thomas Hiltachk, a lawyer for Rescue California, said Tuesday’s move was “a positive indication that a large number of judges in the 9th Circuit are questioning whether the decision yesterday ought to be upheld.”

He said he would urge the appeals court to overturn the three-judge panel’s ruling. If that fails, Hiltachk said they would go to the Supreme Court.

A law professor said yesterday’s move will keep the Supreme Court out of California’s electoral politics for now.

“This probably means that the Supreme Court will not intervene until the appeals court says what it is going to do,” said Rory Little, a Hastings College of the Law professor who closely follows the appeals court. “It most likely delays any Supreme Court action until the court acts.”

Monday Ruling

On Monday, a three-judge panel postponed the recall, perhaps until the March 2 presidential primary, so voters in six counties will not have to use outdated punch-card voting machines. By that time, those counties, including Los Angeles, will have replaced the machines under a court order stemming from separate litigation.

A majority of the 26 active judges on the San Francisco-based appeals court must vote to rehear the case. The court did not indicate when it would decide.

But over the past two years alone, it has reheard cases with 11 judges dealing with abortion protesters’ speech rights, whether inmates can mail their sperm from prison to procreate, whether Unocal Corp. can be sued by indigenous farmers in Myanmar and whether cities can allow Christian crosses on public land.

Rehearing cases does not guarantee a three-judge panel’s decision would be overturned.

Still, despite pleas to do so, the court did not rehear two of its most publicized cases, one declaring the Pledge of Allegiance unconstitutional when recited in public schools and a ruling that citizens have no Second Amendment right to own firearms. Those cases are on appeal to the Supreme Court.

Though some candidates applauded the three-judge panel’s logic that the Oct. 7 date would disenfranchise as many as 40,000 California voters using error-prone punch card ballots—as the American Civil Liberties Union claimed in its lawsuit—others excoriated the judges as a liberal “laughingstock.”

Recognizing that the recall will go forward at some point, candidates for governor struggled Tuesday to focus their campaigns in the shadow of uncertainty.

Gov. Gray Davis continued to campaign against the recall with national Democrats, appearing with presidential candidate Sen. Bob Graham of Florida and the Rev. Jesse Jackson.

Lt. Gov. Cruz Bustamante, the only major Democrat vying to succeed Davis should voters recall the governor, made few references to the ruling as environmental groups reiterated their endorsement of him in San Francisco.

“All those legal matters, the place that they need to be resolved is not the political arena—they are going to be resolved in the courts,” Bustamante said yesterday before the federal court issued its latest order.

Republicans Arnold Schwarzenegger and state Sen. Tom McClintock, R-Northridge, sought the support of former baseball commissioner Peter Ueberroth, who dropped out of the campaign last week saying he didn’t have enough time to gain the support he needed.

Ueberroth ruled out re-entering the campaign if it is extended, but withheld his endorsement, saying he planned to meet with Bustamante before announcing that decision.

McClintock reiterated his criticism of the ruling, saying it sets “a ghastly precedent” and pointing out that the punch card has been used for more than a generation without incident in California.

McClintock noted he did not question the results of November’s election in which he lost the race for controller to Steve Westly by 16,811 votes—many of which were cast using punch cards.

The case is Southwest Voter Registration Education Project v. Shelley, 03-56498.