Man Without Qualities

Saturday, September 20, 2003

Davis Descending XLVII: The Damage That Judges Do

The San Francisco Chronicle reports:

According to Secretary of State Kevin Shelley's office, 538,000 absentee votes had been cast as of Friday afternoon, although voting had dropped off sharply since Monday's ruling [by the 3-member Ninth Circuit panel canceling the October recall election.]

That 3-judge decision has now been effectively voided. And if a study published in the UC Davis law review in 2000 that found en banc panels of the Ninth Circuit to have voted 49 out of 65 times to reverse decisions of three-judge panels is correct and has predictive effect, the 3 judges face a probable swift reversal. However, that en banc reversal is not a sure thing, although some people are foolishly treating it as such, and the effects of the three-judge panel decision will linger until and unless it is formally reversed. If the Ninth Circuit en banc court does not reverse, the Supreme Court will definitely reverse - but that will take even more time.

What might the lingering pre-reversal effects be? Those three judges said they were canceling the October election out of their concern for tens of thousands of votes that might not be counted because of punch card voting machines. But it is likely that tens of thousands of absentee votes that would have already been cast have instead been withheld by voters disheartened by the 3 judge panel's ruling. We know that 538,000 absentee votes had already been cast, but the inflow of absentee ballots has dropped off sharply after the 3 judges committed their act of judicial vandalism.

Will those withheld votes ever be cast? Who knows? But we do know that these three judges have probably aborted tens of thousands of absentee votes that would have been cast by now. "The voting public will not be helped by prolonged uncertainty," says the Democratic Secretary of State Kevin Shelley, speaking with considerable understatement.

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