The Magazine

Ninth-Circuited

From the September 29, 2003 issue: What the Ninth Circuit says about the coming election.

Sep 29, 2003, Vol. 9, No. 03 • By TERRY EASTLAND, FOR THE EDITORS
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THE NINTH CIRCUIT seems to specialize in reminding the country that judges don't come out of nowhere, that they are appointed by presidents, and that, generally speaking, Democratic presidents more than Republicans tend to appoint judges who enforce a "living" or "growing" Constitution that just happens to advance politically liberal ends.

Consider the Ninth Circuit's decision postponing the October 7 California recall election. The three judges on the panel were Harry Pregerson, Sidney Thomas, and Richard Paez. Each was appointed by a Democratic president--Pregerson by Jimmy Carter in 1979, and Thomas and Paez by Bill Clinton in 1996 and 2000, respectively--and each has a reputation for liberal judging. In Southwest Voter Registration Education Project v. Shelley, they showed why.

In siding with the plaintiffs, the judges distorted a Supreme Court precedent--Bush v. Gore--in order to deny the right of California voters to dismiss their (Democratic) governor and elect a new one on terms prescribed by state law. Until now, no federal court has ever enjoined a state election. Pregerson, Thomas, and Paez have achieved a dubious first. Yet they believe that what they did is what federal judges should do routinely, since it is what the Constitution-- their Constitution--demands.

The judges were asked to rule on the punch-card systems that at least 6 of California's 58 counties (representing 44 percent of the state's electorate) were planning to use to count votes. The plaintiffs said that such systems have a propensity for error at least two-and-one-half times greater than any other vote-counting technology used in California, and they calculated that because of that propensity, some 40,000 Californians voting in the punch-card counties wouldn't have their preferences recorded if the election were held as scheduled. The plaintiffs claimed, and Pregerson, Thomas, and Paez agreed, that those voters would be denied the equal protection of the laws guaranteed by the Fourteenth Amendment.

Now, the judges represented what they were doing as a straightforward application of Bush v. Gore, an equal protection case. Indeed, for Pregerson, Thomas, and Paez, Shelley was Bush v. Gore all over again. Our case, they said, presents "almost precisely the same issue as the [Supreme] Court considered in Bush," that issue being "whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause."

But, as the Supreme Court said in Bush v. Gore, the issue before it wasn't "whether local entities, in the exercise of their expertise, may develop different systems for implementing elections" but "whether the use of standardless manual recounts violates" the equal protection clause. Indeed, the standards for accepting or rejecting contested ballots varied "not only from county to county, but within a single county from one recount team to another." A hand recount so lacking in standards could easily result in partisan discrimination, with standards bent this way or that so as to help favored and hurt disfavored candidates.

That's what concerned the Supreme Court in Bush v. Gore. Whatever the faults of the various voting technologies, their error rates don't discriminate among candidates. The Ninth Circuit panel, which deserves to be rebuked by that circuit sitting en banc, rewrote Bush v. Gore to make it reach further than it can when fairly read.

In postponing the election on equal protection grounds, the Ninth Circuit thumbed its nose at the recall process duly established under California law. Millions of dollars have already been spent in advertising. Absentee ballots are starting to be returned. Poll workers have been hired. But all of that failed to impress the judges.

Nor did they shy away from advising other federal judges across the country as to how they might follow their example: "Determining whether or not to enjoin an election based on violations of federal law requires analyzing the effects on the public interest . . ." Note well the assumption that it's okay for judges to stop elections. And by the logic of Shelley, it would seem that a lot of elections should be stopped. After all, Shelley suggests that a state using more than one system to count votes violates the equal protection clause. No fewer than 41 states besides California fit that description.

Nowadays a president gets to appoint a judge once every eight or nine days, on average. A Democratic president would be more likely to appoint judges like the three who enjoined the recall election. George W. Bush in a second term would tend to appoint judges like the ones he already has appointed, who would be disinclined to embrace expansive and unjustified readings of Supreme Court precedents, especially when such readings assault fundamental political rights like those involved in a recall election.

So it is that in electing a president next year, Americans will be casting a vote for the kind of judges we want to see appointed. Three judges on the Ninth Circuit have reminded the country of the nature of the choice ahead, and it could not be clearer.

--Terry Eastland, for the Editors