Monday, September 15, 2003

posted 9/15/2003 01:30:00 PM by Daniel   0 comments

UPDATE (9/16/03): I love it when a plan comes together!

The 9th Circuit Court has decided to have an 11-judge panel reconsider yesterday's ruling by a 3-judge panel to postpone the recall election. This comes after the Los Angeles County Registrar revealed [catch by Daniel Weintraub] that the new voting machines can't handle both the super-long recall ballot and the large number of other March, 2004 contests:

"It's more than a wrinkle," said Los Angeles County Registrar-Recorder Conny McCormack. "No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no."

What a set-up! The full 9th Circuit Court can now avoid enormous embarrassment and reversal by the U.S. Supreme Court by simply doing what I describe below: Allow the recall election to proceed on October 7th, but postpone the propositions until March, 2004.

If they do that, the Supremes won't touch the matter. Democrats will be unable to demonize the U.S. Supreme Court because it will be entirely a 9th Circuit Court decision. The anger level and get-out-the-vote intensity of recall supporters will have been elevated by the effort to abort the election, but recall opponents will have no excuse for comparable anger against a "partisan Supreme Court". And there will be no Prop 54 on the October ballot to energize minorities to get to the polls, and incidentally vote for Davis and Bustamante.

You'd almost think the 9th Circuit Court was in league with the Republicans...

Did the 9th Circuit Court screw Davis and Bustamante?

All the pro-recall people are all upset over the decision by the 9th Circuit Court to block the October 7th election. But those first impressions may be wrong.

So here's my fearless prediction, after pondering the political implications and after reading the decision itself.

The Court's decision has a veneer of plausibility, since the previous (Republican) Secretary of State, Bill Jones, had already conceded in a consent decree that voting machines used in many California counties were defective and had to be replaced. Back then everyone basically agreed that it would take time to replace them. It couldn't be done in time for the 2002 election, but it was feasible for the March, 2004 primary. Nobody really expected a statewide election to take place during the interim, although it was theoretically possible (not just from a recall, but by the Governor calling a special election for some initiative or bond measure).

In other words, everyone agreed that the public interest in holding a regular election in 2002 outweighed the public interest in postponing elections until better voting machines were available.

So does the public interest in holding a recall election in October, 2003 outweigh the public interest in postponing this election until better voting machines are available?

This is the weak spot in the 9th Circuit Court decision. The judges tap-danced hard on this one, arguing that the recall might have been postponed till March anyway:

The operation of this exception produces arbitrary results; because the signatures were certified seven and a half — instead of six — months in advance of the March 2004 election, this exception does not apply, and the deadline falls in early October. In essence, granting a preliminary injunction would put the election only one and a half months after the longer six-month time period provided for by the California Constitution.

But the whole point of a recall, and the reason it was written into the California Constitution the way it was, is that the people must have the power to quickly rid themselves of an elected official when they believe the situation warrants it. Otherwise why not just wait until the end of that official's regular term? Six months from certification is the outer limit allowed in the California Constitution for scheduling the recall election.

The 9th Circuit Court has a much better case for booting Propositions 53 and 54 (the Racial Privacy Initiative) from the October 7th ballot, and the Court explicitly says so:

The case for postponing the election is even stronger with respect to the votes on Propositions 53 and 54. The two propositions on the special election ballot were originally scheduled to be placed on the ballot of the March 2004 election. Indeed, on July 15, 2002, more than a year ago, then Secretary of State Bill Jones issued and signed a certification placing the initiatives on the March 2, 2004 primary election ballot. ...

There is no urgency in obtaining a public vote on the propositions. Proposition 53, to establish the “California Twenty-First Century Infrastructure Investment Fund,” would require specified percentages of the California general fund revenues to be set aside for acquisition, construction, rehabilitation, modernization or renovation of local infrastructure. The first year affected by the proposition would be 2006.

Proposition 54 would amend the California Constitution to prohibit state and local governments from using race, ethnicity, color, or national origin to classify current or prospective students, contractors, or employees in public education, contracting, or employment operations. The initiative has an effective date of January 1, 2005.

So here's what I believe is likely to happen. For the next few days everyone is going to froth at the mouth over the 9th Circuit Court's action. Recall supporters will be livid, and recall opponents will be cautiously delighted. Then the U.S. Supreme Court will step in and rule that the public interest in holding a recall election without delay, as prescribed in the California Constitution, outweighs the public interest in waiting for better voting machines. The U.S. Supreme Court will specifically note that the 2002 elections took place using the same voting machines.

But, the U.S. Supreme Court will agree with the 9th Circuit Court that there is no urgency in voting on Propositions 53 and 54, and that those should be postponed until March, 2004. Doing it in that way will take the sting out of the USSC decision; it will appear very measured and reasonable and "judicial", and will be hard to paint as just another Republican coup by a partisan right-wing court. After all, it makes it far more likely that both propositions will be defeated in a Democratic-weighted primary election. Especially for liberals who are horrified by Prop 54, that is a very big deal.

If the USSC follows the above scenario, it will be a HUGE defeat for the Democrats. Gray Davis might have had a chance to survive if the recall election itself was postponed till next March, during a hot Democratic primary. If nothing else it would be a reprieve, and who knows, by then the horse could learn to talk. But an October recall election is a political death sentence for Davis, and everybody knows it. The Democrats' only hope was to motivate their base of minority voters to get to the polls. A lot of that motivation drains away if there's no Prop 54 to vote against.

It's also a HUGE defeat for Bustamante. He was counting on anti-Prop 54 sentiment to help turn out Latinos and blacks. He was going to transfer $3.8 million of heavily-criticized contributions into the campaign to defeat Prop 54 (featuring himself in the TV commercials). Now what will he do with the money? No matter what new scheme he comes up with for spending the money, it will look dirty and it will further raise his negatives.

And what of the propositions themselves? Both were iffy even in an October election. Prop 53 is bad policy, in that it locks in future state spending. True, the state's infrastructure is decaying, but our bigger problem is huge budget deficits and uncontrolled state spending. Prop 53 would virtually guarantee future tax hikes, and I think the voters will be quite skeptical. Prop 54 is mainly a symbolic measure. It's loaded with loopholes in order to survive the inevitable court challenges. And its sponsor, Ward Connerly, practically conceded defeat a few days ago. So moving the propositions to March probably won't matter.

The 9th Circuit Court (and especially these particular judges) has a reputation for being extremely liberal, partisan, and results-oriented rather than following the law and U.S. Supreme Court precedents. In this case I think they've overplayed their hand. The U.S. Supreme Court has repeatedly slapped the 9th Circuit Court down, and is likely to do so again.

Liberals may come to rue this court decision as the final nails in Davis' and Bustamante's coffins.