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Carol Platt Liebau - Columnist

Carol Platt Liebau is a senior member of the 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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