Man Without Qualities

Saturday, August 30, 2003

Davis Descending XXXVIII: Governor's Buddy Ashcroft Still Dithering

As noted in the prior post linked above, the only legally serious challenge to the October 7 recall election is pending in San Jose federal district court, where the court is essentially stymied by the Justice Department's failure to sign off on proposed election procedures under the Voting Rights Act. As of today (Saturday):

A three-judge federal panel has decided to wait a week before ruling on lawsuits that seek to postpone California's historic recall election because it might disenfranchise minority voters.

The judges on Friday also continued a temporary restraining order that prevents Monterey County elections officials from mailing absentee ballots to overseas voters. The order was first issued Aug. 15, after the lawsuits were filed. The panel said it would not rule on the lawsuits until Sept. 5. ....

Justice Department spokesman Jorge Martinez said the department was still weighing whether the government would sign off on Monterey County's plan and declined further elaboration. The department has already cleared Secretary of State Kevin Shelley's decision to set the election for Oct. 7.

While the San Jose proceeding is the only legally serious challenge to the recall, the ever-zany Ninth Circuit court of appeals will on Sept. 11 hear a non-serious challenge by the American Civil Liberties Union to the Los Angeles federal district court dismissal of the ACLU's lawsuit alleging that punch-card voting machines used in at least six counties won't accurately tally votes.

I would not be surprised to see the Ninth Circuit side with the ACLU. And I would not be surprised to see the Supreme Court immediately grant review and reverse the Ninth Circuit. But nothing here is certain.

The lower court was transparently correct, but that's no obstacle to the Ninth Circuit, which seems to know no limit in its drive to invent ever loopier and more embarrassing precedent for itself. This is a court, for example, that just held that testimony of a patient's own psychiatrist can be used in civil commitment proceedings against the patient, but cannot be used by prosecutors in a criminal case against the patient. In other words, the Ninth Circuit just held that your spouse (for example) can subpoena and use your psychiatrist's testimony based on your therapy sessions in which you discuss committing a crime for the purpose of locking you up as a threat to others, but a prosecutor cannot use that same testimony for the purpose of locking you up once you actually commit the same crime. Anyone who favors that particular policy choice should be seriously and personally concerned about civil commitment proceedings. United States Supreme Court cases are, of course, fairly contrary to the new Ninth Circuit holding - not that most of the Ninth Circuit cares.

UPDATE: As of September 3, the Justice Department has approved Proposition 53 and 54 to go on the ballot - but still no word on Monterey County.

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