Partisan Court(s)

Please excuse me while I add to the din of disputation about the Ninth Circuit’s attempted short-circuit of the Calif. recall election. I’ll not speak to the legal merits of the opinion, since others far more qualified than I have and will. But I would like to respond briefly to the rising chorus of pre-emptive Democratic warnings against the Supremes intervening in this dispute.

The old Democratic refrain — that the recall is nothing more than a right wing power grab — now has a new but familiar verse: if the Supremes step in and reverse the Ninth Circuit, it will just prove once again that Republican-dominated courts are determined to thwart legitimate Democratic victories at every opportunity. The Court came up with a contorted view of what Equal Protection requires to undermine Gore’s victory, the choir sings, and if it reverses here it will be ignoring its own prior opinion in order to stick it to the Democrats once again. Same tune, different words.

Maybe. As I said, I’ll leave it to others to discuss the substantive merits of the Ninth panel’s opinion. But I would like to suggest another way of looking at the question of court intervention in state election matters. In this view, Supreme intervention here would indeed have something in common with Bush v. Gore, but it is not what the Democrats are saying.

One of the strongest defenses of the majority in BvG is that Article I, Section 4, of the Constitution authorized state legislatures to set rules and regulations governing elections. The Florida Supreme Court did not interpret those rules; it set them aside and substituted new rules, extending some deadlines, ignoring others, etc. The intervention of the Supreme Court, on this view, was necessary to rein in a runaway, clearly partisan lower court.

Turning now to the 9th Circuit, Article 2, Section 15(b), of the California constitution provides that recall elections are normally to be held between 60 and 80 days after the requisite number of signatures have been certified by the Secretary of State, but that deadline can be extended to 180 days in order to consolidate the recall election with the next scheduled election. In other words, the Calif. constitution mandates that recall elections must be held within 180 days of the certification of signatures.

The decision of the 9th Circuit panel to delay the recall until March means that the recall election would be held seven and a half months after the certification. “In essence,” pronounced the panel,

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. (I have linked Daniel Wiener’s discussion of this point, which includes the quote, rather than the opinion because you should read his discussion of this matter, which is excellent -jsr)

“In essence,” to borrow a phrase, the panel simply set aside California’s constitutional requirement, presumably because it “produces arbitrary results.” And besides, the panel added “only” one and a half months to a six month deadline. What’s the big deal?

Well, yes, deadlines do tend to be “arbitrary.” That’s what makes them deadlines. Will the Supremes intervene here to slap down another runaway liberal court, a court that has often been compared to the Florida Supreme Court? Who knows. Should they? I don’t know that either.

Before leaving this matter it may useful to recall (if you’ll pardon the expression) another recent example where a very liberal state supreme court “construed” a fixed legal deadline “liberally.” I am referring, of course, to the New Jersey Supreme Court (discussed here, here, and here), which “liberally construed” the NJ election statute providing that candidate names on the ballot could be replaced “not later than the 51st day before the general election.” After this liberal construing the 51 day deadline was toast, and the Democrats were allowed to dump the discredited Torricelli and substitute a shiny new (old) candidate.

The Supremes refused to intervene in New Jersey, and my guess is that they will also refuse to intervene here. Whatever the merits, they took so much heat for BvG that they no doubt don’t want to get burned again.

Be that as it may, if there is a pattern here it is not one of right wing courts making illegitimate partisan decisions at the expense of Democrats and democracy as we know it. It is of liberal courts — of which there are none more liberal than the supreme courts of Florida and New Jersey and the U.S. Ninth Circuit court — circumventing clear constitutional or statutory provisions when it suits their partisan interests.