Posted 11:43 PM by Robert

Davis Descending LI: Impressions Of The Tribe Meltdown

I have spent much of the evening again listening to the audio recording of the Ninth Circuit en banc hearing.

It was painful. And as a matter of sheer advocacy, Mr. Tribe and his co-counsel were just dreadful.

It is painful to hear Laurence Tribe argue that the California Secretary of State declared all further punchcard voting an immediate violation of the federal Constitution when he agreed on behalf of the state to use other technology beginning in March of next year. It's painful because it's an absurd argument. The state never agreed that punchcards were "defective" - constitutionally or otherwise. An academic study (the "Brady study") which was critical of punchcards, is brandished by the ACLU, but is clear make-weight. The study's findings were not adopted by the State - quite the contrary. The Brady study also does not take into account error reduction through careful recounts or any comparision with the error rates of other technologies. The ACLU seems to be hoping that the Ninth Circuit will itself find some facts here (clearly improper for an appelate court) - or perhaps send the whole thing back to the District Court and all but instruct that court to find the missing facts in favor of the ACLU. The Ninth Circuit is clearly having none of it. Judge Kozinski is impressive in his attempts to convey that, yes, he really does grasp each and every ACLU argument, and, yes, he has given those arguments all the sympathy and hearing that they can support. No other judge even suggests more. Judge Klienfeld and other judges make their own excellent points - but those points never support Mr. Tribe.

It is also painful to hear Mr. Tribe and his co-counsel repeatedly evade the court's basic, repeated, prosaic and central (and excellent) question: Isn't this court restricted to determining whether this denial by the district court of a preliminary injunction was an abuse of the district court's discretion? The question of the applicability of the "abuse of discretion" standard again arises in connection with the applicability of a res judicata issue which, if construed against the ACLU, could itself end some of its key claims.

Mr. Tribe is apparently so eager to argue the big constitutional issues that he just can't be bothered to really address this prosaic procedural question. This leaves the state's lawyer to answer the question - and shape the court's considerations - more or less by himself. No judge is willing to endorse Mr. Tribe's Bush v. Gore argument or throw him any rope whatsoever (one judge even asks the ACLU a question based on the assumption that the court will deny his equal protection claims - not a good sign, especially given the tone of the judge's voice). People who claim the court's bearing was ambiguous are being silly - the court sent very clear signals that the only arguments that may have any real life arise under the Voting Rights Act - and the court signals that there's not much there, either. Mr. Tribe only seems to want to talk about the BIG CONSTITUTIONAL ISSUES, but he also seems to grasp early on that the court is not amused - and so he more or less does nothing meanigful on any front for the whole hearing. He pretty much blathers and seems defeated- which he has always been, intellectually and legally. But now he seems to sense that the Ninth Circuit's reserve of Bush v. Gore bitterness and sheer partisan opportunism on which he was counting is just not enough.

The "abuse of discretion" issue is key to the extent the court appears prepared to do anything at all. The court's comments make fairly clear that there is some feeling that the District Court may have got a technical point in the Voting Rights Act law wrong (although the only real support for that is some Saint Louis District Court decision which was reversed on appeal on other grounds - which is not much support, but worth raising the issue). That kind of error might require return of the Voting Rights Act matter to the district court for a "correct" application of that law (but to a probable second rejection of the ACLU's claims). Or the District Court may have simply evaluated the probability of success on the merits without specifically making such an erroneous Voting Rights Act. That means that the standard of review may be very important in the court's determination of whether to send the Voting Rights Act claims back to the District Court. But, by evading the court's questions on this issue, Mr. Tribe and his team have lost the chance to influence the dialogue. It also becomes clear that the ACLU team neglected to provide the District Court with a copy of a case essential to their Voting Rights Act arguments. Ouch!

Mr. Tribe is loudly announced by his opponent to have abandoned the absolute principle put forward by Mr. Tribe in the District Court and his Wall Street Journal screed that any error rate or disparity among counties is unconstitutional. He does not dispute this, and his argument to the en banc panel expressly admits that practical variations and tolerances must be allowed. But he provides no suggestion as to how they should be allowed, instead relying on his mischaracterization of the Secretary of State's actions discussed above.

The court points out that the famous Supreme Court's case Reynolds v. Sims directly contradicts Mr. Tribe's absolutist arguments. The Brady study is again brandished by the ACLU team as if it were constitutionally determinative. At another point, Mr. Tribe suggests that there are actually some parts of Bush v. Gore that he accepts! Does Mr. Tribe think it is generous of a lawyer in federal court to suggest that he only accepts some parts of a Supreme Court case that he is at that moment arguing constitutes controlling precedent - or is he just having a nervous breakdown? It's hard not to cringe for the sheer incompetence of the performance. I say a little prayer of thanks that this Harvard Law professor has never represented my interests in court - and I wonder if the ACLU representatives are so dim that they don't understand how their interests have been butchered by this man.

The court (Judge Kozinski) correctly bears down on the question: Isn't there a point were the invalidity rate gets so great that it amounts to an equal protection violation? The response he receives (from Mr. Rosenbaum, not Mr. Tribe's team) is garbled and painful to hear.

But the answer - which the court never does get - is pretty obvious. Of course, there is such constitutional level. And, just as obviously, it is not going to be expressible as a uniform percentage (which Judge Kozinski keeps suggesting must be the case). Does an election held during a Civil War have to be as exact as a percentage of ballots counted as one held in ordinary time? Of course not.

So the question comes down to that abuse of discretion issue again.