Eugene Volokh points out that Costa’s brief on the en banc review of the 9th Circuit’s activist delay of the California Recall cites one of his blog posts. Here’s the relevant part of the brief:
[5] See also Howard Bashman, Meet hanging chad?s relatives, scribbled oval and hacked touchscreen, <http://appellateblog.com/2003_09_01_
appellateblog_archive.html#106365589040317778> (Sep. 15, 2003), Eugene Volokh, California Recall and Technology <http://volokh.com/2003_09_14_ volokh_archive.html#106365996330480386> (Sep. 15,
2003);
Bashman’s blog cite wasn’t even his own thought, but an e-mail he received from an anonymous reader. (My argument to the error business is here.) We’ve come a long way in intermingling the public policy dialog with blog ranting, haven’t we?
After perusing the briefs on the Activist Ninth Circuit’s web site, it’s apparent that the ACLU has no case, as they’re wrong on the facts and wrong on the law.
On the facts, the activist panel confused “residual ballots” with “errors”, a basic rookie mistake. Residuals include undervotes (i.e., ballots where no mark is made), most of which are cast as “none of the above” votes, and truly represent the voter’s intent. That’s not an error, of course. The activist panel also incorrectly imagined that the first run with new equipment would be less error-prone than voting on the same equipment that’s been in use for 35 years would be, and they reached this amazing conclusion without any evidence.
On the law, the Sec’y of State points out that the court failed to find grounds for appeal in the first place, which would be “abuse of discretion” on the part of the trial court, so they didn’t establish there was a reversible error. Costa argues that the activist panel erred in misapplying Bush v. Gore in a way that would invalidate virtually all elections held in the last 25 years, despite clear statements in the opinion and in all the dissents that it should not be applied in such a way as to ban all punch-card voting. Then there’s the issue of the consent decree dictating that all such arguments are moot as the remedy has already been set in place beginning in March and we aren’t there yet.
The arguments on the other side are beyond weak. Rick Hasen filed another empty amicus brief the sole purpose of which is to tout his textbook, and the ACLU argued that it would be wrong to delay a decision a few days after they successfully argued that it’s cool to delay an election a few months beyond its constitutionally-specified timeline. The ACLU brief is so weak it borders on legal malpractice.
The county elections officers from Sacto and LA are the most scathing in their rebuke of the activist panel. The delay will now go down in history as the most idiotic decision by a federal court since Plessy.