Posted 9:23 AM by Robert

Davis Descending LII: The ACLU Meltdown

The Ninth Crcuit en banc panel was every bit as unimpressed with the Tribe/ACLU performance as it seemed to be. Restoration of the October 7 deadline took even less time than expected.

"The district court did not abuse its discretion in concluding that plaintiffs will suffer no hardship that outweighs the stake of the state of California and its citizens in having this election go forward as planned and as required by the California constitution," the ruling said.

I wonder if Mr. Tribe now wishes he had spent more time preparing and arguing his case under the correct "abuse of discretion" standard and avoiding Bush v. Gore - instead of making his preposterous claim that the matter was one entirely of de novo review for the Ninth Circuit and that the parts of Bush v. Gore of which he, in his academic majesty, approved, really did require that the ACLU must prevail.

Because the 11-member en banc panel decision was unanimous and the panel included eight judges appointed by Democrats, it will be harder for the ACLU and the left generally to characterize this as another "election theft."

But some, such as Ninth Circuit Judge Stephen Reinhardt, will be able to use these developments to continue making their argument that this kind of decision shows that the Ninth Circuit is just not liberal enough.

The Ninth Circuit also declined to postpone the vote on the two initiative (Propositions 53 and 54, which may surprise some people). Some people have argued that the presence of the Propositions (especially Proposition 54) on the ballot helps Cruz Bustamante. But Mr. Tribe seemed awfully please when the court suggested that those propositions might be removed even if the recall went forward. It's hard to believe that there is that much of a gap between the ACLU and Mr. Bustamante.

There are a few indirect - possibly droll - phrasings in the en banc opinion. Early in the campaign (and in other court actions) recall opponents had argued that the recall should not proceed because of the cost and diversion of resources it entailed. In the new opinion, the en banc panel stands that argument on its head:

If the recall election scheduled for October 7, 2003, is enjoined, it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election’s proceeding on the announced date.

There is a possibly sly dig at the job the Tribe/ACLU team did is producing actual evidence to support its airy claims:

We must of course also look to the interests represented by the plaintiffs, who are legitimately concerned that use of the punch-card system will deny the right to vote to some voters who must use that system. At this time, it is merely a speculative possibility, however, that any such denial will influence the result of the election.

The nearly unbelievably self-indulgent Tribe/UCLA insistence in relying on Bush v. Gore is exposed without mercy:

In Bush v. Gore, the leading case on disputed elections, the court specifically noted:“The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.”

If there were such a thing as criminal malpractice in a civil case, then the Tribe/ACLU reliance on Bush v. Gore would be its paradigm.

Now that the efforts of three liberal judges to save democracy from itself have been beaten off, California will have an election in which it is by no means clear anything will change at all.

UPDATE: The American Civil Liberties Union said it wouldn't appeal the ruling to the U.S. Supreme Court.