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Center ring at the 9th circus

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Oral argument just ended in the en banc hearing of the ACLU challenge to the California recall election. The panel of 11 judges, selected randomly, happens to consist of some of the most conservative judges on the court. They are faced with deciding whether the punch-card ballots used in certain predominantly minority districts in California violate the constitutional guarantee of equal protection.

InsertArt(2021185)AS I mentioned last week, this en banc panel is the 9th Circuit’s best chance at saving face and avoiding yet another blistering rebuke by the Supreme Court. What’s clear from argument this afternoon is that the judges are also extremely concerned about fairness in the upcoming recall election. As the discussion unfolds, it’s plain they are not terribly worried about the applicability of Bush v. Gore to the facts of this case or the political or ideological return they might get from sticking it to the Supreme Court. They are worried about balancing the harms to voters: the harm of having some votes counts less than others as a result of outdated equipment versus the harm of postponing an election that Californians have sought and prepared for.

This gravitas is heartening, particularly in light of some oddly overheated remarks made to the Los Angeles Times this weekend by their colleague Judge Harry Pregerson, a member of the original three-judge panel. “You know who’s on the panel, right? Do you think it’s going to have much of a chance of surviving? I wouldn’t bet on it,” Pregerson told the Times, reinforcing the depressing possibility that there is only naked ideology at play in this case.


I watch the argument with a friend named Max, a first-grader who manages to listen to virtually all of it, with the significant help of a halftime cheese snack. Max observes that while the proceedings are “not exactly boring,” it would be better if there were less interruptions. This is astute. Advocates on both sides are infuriatingly unwilling to cede the floor to the judges today, and the result is a good deal of inaudible cross-talk. Max also wonders what would happen to cheese if it got very close to the sun, but this issue is not addressed by the court today.

Professor Lawrence Tribe, arguing for the ACLU side, argues that where, as is the case here, the California secretary of state has legally agreed that punch-card voting is unfair and must be jettisoned by next March, there is simply no room to argue that this one last itty bitty election can be excepted from basic equality. “This is technology that has to go,” he says. Judges Alex Kozinski and Andrew Kleinfeld challenge him on whether the lack of voter confidence has to do with genuine failures in the equipment or if it’s just “unconstitutional because the press gave it a bad name.”

Mark Rosenbaum also argues the ACLU side and asserts that if indeed one in 25 votes does not count in some districts, the court would be “treating votes like refuse.” Kleinfeld counters that all the absentee ballots already cast would literally become refuse, thrown out altogether. Rosenbaum says those voters can vote again next March.


Deputy Attorney General Douglas Woods defends the California secretary of state. Judge Kozinski — whose prodigious mind, right-wing leanings, and scorching wit make him more like Antonin Scalia than Scalia himself — jokes at Woods over the court’s standard of review in this case: “Do we look at if [the lower court judge] got the law right, or do we say ‘close enough’?” he asks. “Because he sort of missed it on the Voting Rights Act, right? Just between us? I won’t tell anyone.”

And Kozinski, who dominates the argument today the way Scalia tends to do in the high court, similarly razzes Charles Diamond, who represents Ted Costa, the man who initiated the recall ballot initiative. Pressing Diamond on what kind of government-tampering with voting would represent an equal protection violation, he asks what would happen if Los Angeles County officials just decided to count every other vote. Later he asks what happens if they toss nine out of every 10 ballots, quipping, “I feel like Abraham here.” High Holy Day humor that’s lost on much of the crowd.

Judge Johnnie Rawlinson asks Diamond the $40,000 question when she wonders whether Bush v. Gore doesn’t stand for the proposition that votes need to be counted equally. Says Diamond, scornfully: “When you read Bush v. Gore at 30,000 feet, like the plaintiffs have, you can find support for anything.” Ouch. Diamond concludes that while one man/one vote is “an honorable goal,” realism and practicality must also hold some sway.


In the 30 seconds given to him for rebuttal, Rosenbaum offers a heroic attempt to consolidate the thousand firing synapses in his brain into three cogent points about election law. He gets as far as point three before the technology seems to backfire: “This is the strongest case,” he points out, “that has ever been in this circus.”

“Um, circuit.” He tries to correct himself, but the bench is in stitches, and one of the justices laughingly suggests that he “quit while you’re ahead.” “Guess who’s the biggest clown,” Rosenbaum laughs back, packing his papers back into his briefcase. That issue isn’t exactly before the 9th Circuit either, but they’ll probably decide it this week.

Dahlia Lithwick is a Slate senior editor.