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Contributors
Carol Platt Liebau - Columnist
Carol
Platt Liebau is a senior member of the CaliforniaRepublic.org
editorial board. She is an attorney, political analyst and commentator
based in San Marino, CA, and has appeared on the Fox News
Channel,
MSNBC, CNN, Orange County News Channel, Cox Cable and a variety
of radio programs throughout the United States. A graduate
of
Princeton
University
and Harvard Law School, Carol Platt Liebau also served as the
first female managing editor of the Harvard Law Review.
 Saved
By The Bell?
Ninth Circuit Postpones Recall Election
[Carol Platt Liebau] 9/16/03
Yesterday morning, a three-judge panel of the Ninth Circuit Court
of Appeals ruled that the recall election should be postponed
until March. But interestingly, they stayed their order for a
week, in order to allow appeals to the entire Ninth Circuit and
to the U.S. Supreme Court -- and the postponement may not be
a "done deal", given the Ninth Circuit's status as
the "most reversed" circuit in America.
In effect,
the Ninth Circuit ruled that the recall violates the Constitution's
Equal Protection rights of voters in the 6 California
counties where punch card vote counting machines have not yet
been replaced. (It must be noted, however, that these same
machines
were used without objection or reported trouble in last year's
gubernatorial elections -- and that other problems have been
identified with the machines that are to replace them).
But what's
most notable about the Ninth Circuit opinion is its airy disregard
for the will of the people of California, embodied
in the state Constitution (which sets forth the process for conducting
a recall election). Basically, the three judges took it upon
themselves to decide that, since the election would have been
held in March anyway -- had certification come a month and a
half later -- there's no real harm in just going ahead and postponing
it. So, much like the Florida Supreme Court in 2000, the Ninth
Circuit judges have shown themselves to be willing to substitute
their own, results-driven policy preferences for the plain meaning
of the state Constitution and the expressed will of Californians.
The opinion
dismisses the argument that there is a compelling state interest
in conducting
the recall in accordance with the
procedures set forth in the California Constitution -- perfectly
exemplifying these judges' utter contempt for both the law and
the democratic process. If judges don't see the value of going "by
the book" in interpreting the election laws, what are the
laws there for in the first place?
Assuming
that the recall is, indeed, postponed until March, the political
ramifications are
unclear. Theoretically, if conditions
in the state improve, Davis might have a better shot at surviving.
And he would be helped by the election being conducted in conjunction
with a contested Democratic presidential primary. But if conditions
deteriorate, he will be in worse shape than ever -- even less
popular, and faced with an electorate enraged at the judicially-imposed
delay.
The next week will be key as appeals are taken to the
U.S. Supreme Court. It's far from clear that the Ninth Circuit
opinion will
stand. But if it does, it will become just one more symbol
of judicial contempt for the will of the people.
CRO columnist Carol Platt Liebau is a political analyst and
commentator based in San Marino, CA.
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