Another Stupid SOS Trick?
First the good news: the en banc panel set to hear Southworst Voter Fraud Project v. Shelley is about as conservative a panel as this circuit ever gets. From the moment I learned that the Circuit would rehear the case en banc, I had little doubt that Monday’s ruling will be erased, but was expecting something on the order of a 7-4 ruling, or maybe even 9-2 – something that would still make the disenfranchisementarians think they had a valid point worth litigating. Given this make-up, there’s a very real chance that Monday’s lawless ruling will be reversed unanimously, a distinction that would set no legal precedent in and of itself, but which would send a powerful message that elections do not exist at the pleasure of ideologically-driven courts.
That’s the good news.
The bad is that Secretary of State Kevin Shelley has sent signals indicating he intends to abandon the central issues of the challenge, and devote his entire oral argument to the res judicata issue. While that objection is a valid one, relying on this issue alone is playing with fire. For one thing, the court could, potentially, reject the res judicata argument on a technicality. For another, even if the court rules the right way, the resulting decision – like Bush v. Gore, may end up making it look like the good guys won on a technicality. The argument would be, essentially, that California’s elections are unconstitutional as hell, we just can’t do anything about it because we’re bound by a consent decree. This would be an open invitation to the ACLU, a wholly owned subsidiary of the Democratic Party, to mount similar challenges in any other states that still use punch cards but which are not currently bound by similar accords. It would even invite similar suits in California, as the ACLU could just as easily argue that any other two technologies used anywhere in the state have unequal accuracy rates.
Ted Costa is asking the court to split the appellants’ time. This would be a very wise move, politically as well as strategically. As one of the original proponents of the recall, no one questions that Costa will use his time to argue his position vigorously. The same cannot be said of Shelley, who has twice (at least) resorted to sleazy tactics aimed at keeping the recall off the ballot. Now, he seems about to try a third.
Link via Prestopundit.
September 19th, 2003 at 10:25 pm
Also good news is the fact that the panel has some very bright people who can get past Shelley’s incompetence. As someone pointed out on the “How Appealing” site, Kozinski is the most senior judge of the group likely to vote to overturn the panel decision. I feel confident he will see the true issues, and write a very compelling opinion for anyone who bothers to be swayed by rationality.
Enjoy your site.
September 20th, 2003 at 6:58 am
Slow down there cowboy!
First of all, oral argument is usually a waste of time. Now that it’s televised, it will be even more of a show. Appellate judges almost always base their opinions on the written briefs and thirty minutes of oral argument isn’t likely to change anyone’s mind. And, by limiting oral argument to only thirty minutes, the Circuit judges are indicating that they don’t want to allow for the opportunity to be persuaded to change their minds. 30 minutes is window dressing, the bare minimum to obtain public acceptance and legitimacy.
Second, I think Shelley (or at least the Deputy Attorney General who wrote the brief) is playing it straight here. Admittedly, the Costa brief and the Shelley brief emphasize different arguments — but that’s a good thing. The Costa brief didn’t touch on deference owed to the trial court on questions of injuctive relief, or the balancing test that the Court must conduct when weighing the factors in support and against issuing an injunction.
In any event, the briefs were limited in both length and in the time allowed to prepare. And with the original decision so bad, there was certainly a lot to say.
Third, When Costa criticizes the Shelley brief, it’s only so he can get a little of the speaking time. He is, in other words, making an argument. What’s he supposed to say? “Oh, that Shelley brief is really really good and says everything that needs to be said, but can I talk anyway?”
September 20th, 2003 at 8:44 am
Yeah, but Shelley sounds like he is all but abandoning the main argument. One might wonder whether he really wants to win. There’s plenty new to say: Bill Jones saying his statements were misrepresented, L.A. election officials saying they can’t get the new technology ready in time for March, etc.
September 20th, 2003 at 10:02 am
Well, I don’t think that there’s any great conspiracy and I don’t think Shelley has a great deal of connection with the Deputy A.G. who wrote the opinion. In fact, in light of the well-reported contempt that Lockyer holds for Bustamante, you could even argue that the Lockyer Deputy is conspiring to screw Cruz so that Lockyer can run against a weak incumbent Schwarznegger in ’06. In any event, no Deputy A.G. in such a high profile case would intentionally bungle an argument to help the other side win. That’s just whacky. Lawyers don’t work that way.
Look, I read Shelley’s brief and was impressed. In fact, I thought it was better done, and more convincing, than Costa’s brief. But if Costa and Shelley ended up arguing the same points, what a wasted opportunity that would have been.
I just don’t think there’s any conspiracy here. Shelley, and the Deputy A.G., are playing this straight.
September 20th, 2003 at 11:47 am
I hope you’re right about Shelley the Deputy A.G., but I disagree with your suggestion that no Deputy A.G. would ever do such a thing to help “the other side” win a suit when both parties were really on the same side of the issue to begin with. Witness the Prop 187 court challenge, for example.
September 21st, 2003 at 9:14 am
I can’t speak for Xrlq. Personally, I suggest no conspiracy, but I suspect a lack of competence in seeming to abandon the big issue at oral argument.
September 21st, 2003 at 11:55 am
I don’t blame the lawyers for what happened to Prop. 187. I’m sure the decision in mediation to abandon the initiative was a call made by the client, not the lawyer.
September 22nd, 2003 at 12:12 am
I’m sure you’re right. The problem now is the same as the problem then – the client may not really want to “win.” I trust the lawyers not to take a dive against the client’s wishes, but I don’t trust the client not to instruct them to do so. Then again, a lot of pundits think the panel has made up its mind anyway, so maybe the oral arguments won’t really matter.