Recalling the Recall
By Dylan Frehner
J.D., University of the Pacific,
McGeorge School of Law to be conferred May 2004
As we approach the March 2004 election, it is easy to look back over the last year and wonder what might have been. In particular, we can look at the recall of Governor Gray Davis, and how close the recall election was from being postponed until the upcoming March election. Unfortunately for Governor Davis and his supporters, the California electorate imposed a stricter standard of review than the Ninth Circuit Court of Appeals.
Back on July 23, 2003, California Secretary of State Kevin Shelley announced that more than 1.3 million signatures of registered California voters had been received and verified for the recall of the Governor. Following the mandate from the California Constitution that a recall election must be held between 60 and 80 days from the date of certification, unless there is a statewide election within 180 days, the Lieutenant Governor Cruz Bustamante ordered on July 24 that the recall election take place on October 7, 2003. Once the recall election date was set, a number of lawsuits were filed to stop or delay the election. The most prominent lawsuit was the Southwest Voter Registration Education Project, et. al. v. Shelley, 344 F.3d 914, 9th. Cir. (Cal.), Sep. 23, 2003 (hereinafter Southwest Voter).
A. Federal District Court for the Central District of California
In Southwest Voter, the plaintiffs brought a federal claim in the United States District Court for the Central District of California alleging that the proposed use of "punch card" balloting machines in the recall election would violate the U.S. Constitution and Voting Rights Act. In particular, plaintiffs argued that ballots from punch card machines were twice as likely to be disqualified for either containing more than one vote on a single contest or for showing no vote at all. Thus, voters using punch card machines would have a comparatively lesser chance of having their votes counted in violation of the Equal Protection Clause. Further, the plaintiffs alleged that counties still using punch card systems have greater minority populations, thereby disproportionately disenfranchising and/or diluting votes on the basis of race in violation of Section 2 of the Voting Rights Act. In light of the facts that the California Secretary of State had decertified punch card voting systems for use in California elections and that a consent decree had been entered by the state and counties to replace punch card machines in advance of the March, 2004 elections, plaintiffs moved the court to delay the recall election until March, 2004 when the election could be conducted without punch card machines.
In order to receive a preliminary injunction, the plaintiffs needed to prove either (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in their favor. According to the District Court, the plaintiff failed to meet either of these requirements.
1. Probability of Success on the Merits
Although the District Court assumed that plaintiffs would suffer irreparable injury in Southwest Voter, it concluded that the plaintiffs were not likely to prevail on the merits. Beginning with possible defenses to the claims, the District Court did not decide, but rather recognized the difficulty that plaintiffs would have in overcoming defendant's two likely defenses. The first defense plaintiffs had to overcome was res judicata. The District Court found that substantially the same identities, evidence, rights, and nucleus of facts from Common Cause, et al. v. Jones, (C.D. Cal. 2002) (No. 01-03470), were also present in this case. In Common Cause, the parties entered into a consent decree decertifying punch card machines after March 1, 2004. The District Court found that implicit in the consent decree was the fact that punch card machines would remain certified during the intervening period leading up to the March, 2004 election. The Court reasoned that if this suit proceeded, then it was likely that the state's right to use the machines until March 2004 or the state's interest in an orderly replacement of the machines would be destroyed, thus triggering res judicata.
The second defense plaintiffs would have to overcome was the equitable doctrine of laches. Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense. The District Court recognized that plaintiffs in this case waited almost two years to reassert their claims, even though they knew that other elections would take place during the interim leading up to March, 2004. The Court reasoned that if it allowed the plaintiffs to suddenly rediscover their claims to delay this election, then the state, which had relied on the previous Consent Decree allowing it until March 2004 to update, would be prejudiced. Thus like res judicata, the Court did not officially decide on the issue, but recognized laches as a serious impediment to the success of this claim.
Even without the defenses though, the District Court found that plaintiffs had failed to prove a likelihood of success on the merits of their claims. Under their equal protection claim, the plaintiffs invoked the principle of "one-person, one-vote." The plaintiffs argued that the U.S. Supreme Court through its landmark decisions of Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801 (1963), Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964), and their progeny required the District Court to strictly review the states alleged violation of this principle. Referring to these landmark cases and relying heavily upon Burdick v Takushi, 504 U.S. 428, 112 S. Ct. 2059 (1992), the Court followed a rational basis review based on suggestive language from the Supreme Court that marginal deviations from precise vote equality and minor burdens on the right to vote need not be subject to strict scrutiny. Citing to Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525 (2002), the District Court further justified using a lower standard because the Supreme Court strongly hinted in its language that rational basis review might even be appropriated to claims of marginally disparate error rates among varying voting technologies. Using the rational basis test, the Court concluded that the state would merely need to adduce sufficient justifications for their use of the punch card machines in this election, thus making it unlikely for the plaintiffs to be successful on their equal protection claim.
Finally, the plaintiffs claimed that the use of punch card machines in populous counties with high minority concentrations coupled with the alleged error rate of the machines constituted a violation of the Voting Rights Act. Their contention was that some 40,000 votes would be lost as a result of higher error rates. However, the District Court reasoned that in a state of nearly eight million voters there was at best a slim chance of plaintiffs proving that punch card machines cause an inequality in the opportunities enjoyed by minorities in electing their preferred representatives. Thus the Court concluded that the plaintiffs were also unlikely to succeed on their Voting Rights Act claim.
2. Balance of Hardships / Public Interest
Even assuming that plaintiffs could succeed on the merits, the District Court found that the balance of hardships weighed heavily in favor of allowing the election to proceed. The Court balanced the hardship of the state in canceling or postponing the election if the injunction was granted, against the potential hardship to plaintiffs of dilution or denial of votes through the use of punch card machines if the election was not delayed. Focusing on the public interest prong of the balancing, the Court reasoned that the public had a high interest in protecting the state's political self-determination to carry out the election and to avoid the extensive costs of delaying the election. Thus the Court held that the public interest in going forward with the recall election strongly favored the denial of the preliminary injunction.
The District Court denied the plaintiffs request for an injunction on August 20, 2003, and held that the recall election should proceed as outlined.
B. Ninth Circuit Court of Appeals, Three Judge Panel
After the District Court's denial, the plaintiffs appealed to the Ninth Circuit Court of Appeals, and their appeal was argued on an expedited basis before a three-judge panel on September 11, 2003. The three-judge panel reviewed the District Court's denial of the preliminary injunction for abuse of discretion. An abuse of discretion occurs, if and when the District Court bases its decision on an erroneous legal standard or on clearly erroneous findings of fact. Upon review, the three-judge panel concluded that the plaintiffs had shown a likelihood of success on the merits and the District Court abused its discretion, or erred as a matter of law, by denying the preliminary injunction.
According to the panel, the plaintiff's in Southwest Voter presented almost precisely the same issue as the Supreme Court considered in Bush, which is whether unequal methods of counting votes among counties constitutes a violation of the Equal Protection Clause. In Bush, the Supreme Court held that using different standards for counting votes in different counties across Florida violated the Equal Protection Clause. Relying on Bush, the panel concluded from its review of the evidence on punch card machines that the plaintiffs were likely to succeed on their Equal Protection claim.
In their reasoning, the panel criticized the District Court's use of a rational basis scrutiny to determine the likelihood of success. In the panel's view, strict scrutiny review should have been applied in this situation as recently held in Idaho Coalition United for Bears, 2003 WL 22072191. The panel concluded that the District Court erred in its legal analysis when it relied upon Burdick as a template for its rational basis review. According to the panel, Burdick did not mandate the use of rational basis, but only held that not every burden on the right to vote must be subject to strict scrutiny. Furthermore, the panel distinguished the issue in Burdick, which concerned First Amendment rights to ballot access, from Southwest Voter, which alleged a deprivation of a right to have one's vote counted. The panel concluded that the latter right to have one's vote counted has traditionally been examined under strict scrutiny. Thus under a strict scrutiny standard of review, the state would have been required to show a compelling reason for using outdated equipment, and that using the equipment is narrowly tailored to meet the compelling purpose. The panel found that the state had not asserted any such reason.
After finding a likelihood of success on the Equal Protection claim, the panel did not feel there was a need to discuss the possible success of the plaintiffs' Voting Act claim. However, the panel did go on to disagree with the District Court's analysis regarding res judicata and laches as obstacles to the plaintiff's success on the merits. The panel further criticized the District Court's use of public interest in its balancing of the hardships, and determined that the hardship and harm in this case weighed heaviest against the plaintiffs.
Based upon the above reasoning, the three-judge panel reversed the District Court's decision and granted the preliminary injunction delaying the recall election until March 2004.
C. Ninth Circuit Court of Appeals, En Banc Review
On September 15, 2003, the Ninth Circuit Court of Appeals voted to rehear the Southwest Voter case en banc, and the opinion of the three-judge panel was withdrawn. The en banc review took place before an eleven-judge panel, and many hoped that the panel would further outline the meaning and impact of Bush v. Gore case, which the three-judge panel heavily relied upon. However, sidestepping the controversy of Bush, the eleven-judge panel instead focused on the pressing practical issues at hand. With the October 7 election date bearing down, the panel found that there was only one technical question that needed to be answered in this case; whether or not the federal District Court judge abused his discretion by refusing to enjoin the election.
Restricting itself to a review of the legal principles, the panel did not find an abuse of discretion. While the panel recognized that plaintiffs had shown a possibility of success, especially on their Voting Rights Act claim, a strong likelihood of success on the merits did not exist. Further, even though both sides would incur hardships pending the outcome, the panel placed great emphasis on the state's burden of halting an election once it had already begun. Thus, on September 25, 2003 the eleven-judge panel held that the District Court did not abuse its discretion in denying the plaintiff's injunction and requiring the election to go forward as planned.
D. Recalling and Moving On.
While the eleven-judge panel did not find any abuse of discretion in their review of the District Court's ruling, the voters of California employed somewhat of a higher standard in their review of Governor Gray Davis. On October 7, 2003, Californians recalled Governor Gray Davis with over 50% of the votes, as required by the California Constitution. Subsequently, Californians then voted in actor-turned-politician Arnold Schwarzenegger as the new governor of California.
As the March 2004 election approaches, the state and counties are now on track to have all punch card voting machines replaced in compliance with the consent decree. The nation in turn has switched its focus from California and the recall, to the upcoming presidential election. Nevertheless, the judiciary in California and across the nation still remains in the spotlight. The role of the judiciary in determining who can marry has recently reemerged on the national scene, and appears to be an unsettled and controversial issue set for debate among presidential candidates. However, it doesn't take much to recall that the status of Bush v. Gore and the role of the judiciary in determining the outcome of elections is likewise unsettled and lying somewhat dormant. The Ninth Circuit contemplated awaking and discussing the issue, but in the end decided that maybe a state recall was not the right time and place to do so. Instead, maybe only another close presidential election and its national prominence will bear sufficient weight to warrant a discussion and clarification of Bush v. Gore and its implications. If that is the case, November is only a short eight months away.