Republicans of course can point with equal furor to the sudden substitution of Frank Lautenberg for the scandal-ridden Torricelli. The feud over Indiana's "Bloody Eighth" recount in the early '80s also tremendously upset the Republicans. Certainly both parties have engaged in amazing gerrymandering whenever they've had the power, too.

This is the very dotty 9th circuit, I believe the most-reversed panel. We'll see what happens.

I'm not a lawyer, but what about this:

- The Supreme Court intervention was bad for a lot of reasons. One of the bad things was that it was a lawless ruling, with no roots in law or precident.

- The California intervention relys on the precident set in the Supreme Court intervention in Bush vs. Gore.

It doesn't make the California intervention morally right, but it's not lawless and unprecidented.

First you say "postpone" the election, then you say "block." There's a considerable difference.
True, postponement may benefit Davis. But then so might uncounted ballots benefit his opponents.

Let me first note that the 40,000 number mentioned in the court ruling comes right out of research performed by Henry Brady at Berkeley in the aftermath of the Florida episode. Before this, there was surely less information out there because no-one did research into the effect of voting technologies on vote outcomes. As far as I am concerned, the real scandal of the 2000 election was not the Court intervention, but rather that poor voting technology determined the outcome of an election (this is not a partisan statement, but something that was shown very convincingly in the december 2001 APSR by a variety of political scientists). Surely a court intervention to prevent the possibility of a recurrence of that can be argued to be for the good sake of democracy.

One quick and easy distinction is that the Supreme Court decision in Florida was made after the election had occured. As such, the court had concrete knowledge of how its decision would effect the election. This decision is made 3 weeks ahead of time, making it much less certain whether it will have a positive or negative effect for any given party.

Chances are that there's no relevant constitutional or state law on the subject, but this distinction seems to have a lot of practical importance.

As a public service, I thought it worth reprinting the abstract from the American Political Science Review article that Erik Voeten mentioned in his comment:

"The Butterfly Did It: The Aberrant Vote for Buchanan in Palm Beach County, Florida," Johnathan N. Wand, Kenneth W. Shotts, Jasjeet S. Sekhon, Walter R. Mebane,Jr., Michael C. Herron, and Henry E. Brady.

We show that the butterfly ballot used in Palm Beach County, Florida, in the 2000 presidential election caused more than 2,000 Democratic voters to vote by mistake for Reform candidate Pat Buchanan, a number larger than George W. Bush’s certified margin of victory in Florida. We use multiple methods and several kinds of data to rule out alternative explanations for the votes Buchanan received in Palm Beach County. Among 3,053 U.S. counties where Buchanan was on the ballot, Palm Beach County has the most anomalous excess of votes for him. In Palm Beach County, Buchanan’s proportion of the vote on election-day ballots is four times larger than his proportion on absentee (nonbutterfly) ballots, but Buchanan’s proportion does not differ significantly between election-day and absentee ballots in any other Florida county. Unlike other Reform candidates in Palm Beach County, Buchanan tended to receive election-day votes in Democratic precincts and from individuals who voted for the Democratic U.S. Senate candidate. Robust estimation of overdispersed binomial regression models underpins much of the analysis.

One might also do well to remember that the Florida Supreme Court decisions allowing the recount to continue indefinately (or until Gore could be shown to win anyway) was the definition of lawless and baseless. The USSC had every bit of authority and obligation to strike down that decision based directly on Article 2. Why they chose to apply a more dubious equal protection argument is anyones guess. However, this is clearly the 3rd case where a notably liberal court has ignored, ammended, or outright written election law to the benefit of a democrat (Florida, New Jersey, California). I find the track record disturbing, especially with the unprecidented filibustering of Bushs judicial nominees. There is a pattern here.

Well, at least this intervention occurred BEFORE the election and not afterwards, or in the middle of the recount.

Equal protection clause is a great principle but if it's used by judges without any sense of procedural or substantive judicial self-restraint is a blank check for all kinds of dangerous rulings.

SMG

Justin Blank's observation that it's "much less certain whether [the Ninth Circuit's decision] will have a positive or negative effect for any given party" is true, but the court's ruling fails to take into account the possibility of legal but disruptive election shenanigans in the California Democratic presidential primary on March 2, 2004.

If California (like Illinois, where I vote) provides separate Democratic and Republican ballots in primaries, imagine the fun a lot of (annoyed, anti-Davis) voters will have in the presidential primary/recall on March 2. They can claim to be Democrats that day and vote in the presidential primary for the weakest or most controversial candidate, in what may yet turn out to be the most important primary state of the race.

Of course, voters can cross over and monkey around when there are two presidential (or statewide) primaries on the same day, or even show up for the other party's primary, but it seems that residual anger over the court's postponement might result in more than the normal amount of vindictive voting. Plus, Republicans would not be voting on March 2 at all if not for the recall, which may be why the Secretary of State on his own placed Proposition 53 and 54 on the October ballot instead of leaving it for primary day.

Even if California provides just one ballot to all voters, regardless of party affiliation -- which is likely the case because there is no Republican presidential primary and no statewide offices up for election on that day -- many Republican anti-Davis voters might just try to give the California primary to Dennis Kucinich or Al Sharpton on March 2.

My prediction (detailed on my blog) is that the U.S. Supreme Court will overturn this decision as far as the recall election itself is concerned, but will uphold the postponement of Propositions 53 and 54 until the March, 2004 primary. Politically that would be a HUGE loss for the Democrats, since Prop 54 was a main motivational factor to turn out their base voters. Besides, what would Bustamante do then with the $3.8 million that he's supposedly transferring to the anti-Prop 54 campaign?

Devise a theory of judicial intervention that argues that either this Court of Appeals intervention or the U.S. Supreme Court intervention in the Florida recount was appropriate, but the other is not.

Sure: uniformity is the operative principle. Souter and Breyer, two of the dissenting Supreme Court justices in Bush v. Gore, held, ex post, that the recount should be permitted to continue so long as a uniform standard were applied statewide in counting ballots. The 9th Circuit has held that, ex ante, the recall election should not go forward until voting technologies that meet state standards are uniformly available.

(On December 12, 2000, the majority in Bush v. Gore held that allowing the recount to go forward without a uniform statewide standard would be an equal protection violation, but that remanding to the Florida Supreme Court to set that standard was impossible by December 18, the time constraint imposed by Florida law. In dissent, Souter and Breyer argued that it was not for the Supreme Court to determine whether or not that was possible. In their dissents, Stevens and Ginsburg also argued that it was unclear why allowing the recount to proceed without a uniform standard would be an equal protection violation, particularly if the alternative was not having any recount at all, which guaranteed that several thousand valid votes would go uncounted.)

I haven't read the Ninth Circuit panel's opinion yet, so I'll pass for the moment on your challenge to lawyer-bloggers.

I'm very surprised, however, to read that you've bought into the Dem theme that Texas redistricting is about "subverting democracy," Mr. Drezner.

The redistricting fight in Texas is very much about small-d democracy -- but the Dems are on the anti-democratic side. They're the ones fighting for the "right" to vote from a Congressional district imposed by a panel of unelected, unrepresentative federal judges who themselves protested that they lack "political legitimacy" to do redistricting. They're the ones who've busted quorums in two special sessions of the Texas Legislature for the express purpose of preventing a majority-rule vote.

I'm not sure where you've gone off-track, Mr. Drezner. Gerrymandering is small-d democracy at its most raw; but even if your objection is to the notion of gerrymandering as done by either party, that would still leave you opposing the present Texas Congressional districts, which are essentially the product of a 1991 pro-Democrat gerrymander.

Under our system of democracy, political matters (particularly matters relating to how elections are to be conducted) are supposed to be primarily controlled by the legislature. The US Supreme Court ruling in 2000 was proper because it overturned a lawless decision of the FLA Supreme Court. The FLA SCT decision ignored rules the legislature put in place regarding the conduct of the election. The US SCT properly overruled the FLA SCT's attempt to ignore these rules.

The 9th Circuit decision is as lawless as the FLA SCT decision because the 9th Circuit ignored legislative dictates on the conduct of elections. It should be overruled for the same reason.

No election is perfect. I have been involved in elections (as a neutral party) and can testify to this first hand. Legislative rules are put in place to determine how the problems which arise are to be resolved. This permits certainty. They may not be the best available solution to every potential problem, but as long as they are known to all parties in advance and are fair, they should be respected. The 9th Circuit decision is particularly egregious because it points to speculative problems which have not even been demonstrated to exist.

P.S. The Voeten article is partisan hogwash. The Dems approved that ballot in advance. Complaining about it after the ballots have been cast smells a lot like sour grapes.

Ben writes:

The FLA SCT decision ignored rules the legislature put in place regarding the conduct of the election. The US SCT properly overruled the FLA SCT's attempt to ignore these rules.
The 9th Circuit decision is as lawless as the FLA SCT decision because the 9th Circuit ignored legislative dictates on the conduct of elections. It should be overruled for the same reason.

All false.

To elaborate a bit: the rule of decision in those cases is completely different from what Ben states. The rule of decision in both cases was the Equal Protection Clause of the 14th Amendment, not compliance with state law.

The Voeten article is partisan hogwash. The Dems approved that ballot in advance. Complaining about it after the ballots have been cast smells a lot like sour grapes.

Not only was the ballot approved by the Democrats, it was desgined by a Democratic official.

That, however, does not mean that the ballot did not cause thousands of Democrats who wanted to vote for Gore from voting for Buchanan by mistake.

The problem with the 9th Circuit Court’s ruling is that is sets a precedent to question any election where the punch card system is used, even though the punch card system has never been proven to be anymore troublesome than other forms of voting. Any state that holds a vote before they can rid themselves of those machines will now face a court hearing with a lawyer trying to throw out the unfavorable results for his clients. The anecdotal evidence of people voting for Buchanan is interesting, but the electronic means of voting is largely untested and faces many problems from accidental software bugs to intentional software viruses. The punch cards may be slower to count and hard for slow people to understand, but there is an actual physical ballot that can examined after the fact.

The Florida Supreme Court should have followed state law and either halted recounts past the legislated day or allowed the State Legislature to certify the winner of the electoral votes. When they ignored the law and ruled by fiat, the U.S. Supreme Court had no choice but to step in before too much damage was done.

Alkali,

See Paragraph 2 of Tom's comments. The 9th Circuit ruling has the same problem with dates & it ignores the fact that the legislature approved of the use of punch card systems. Punch cards may not be the best system, but they still lead to a free & fair election.

The Dems are definitely on the wrong side of the Texas gerrymandering case, as I detailed some time ago here.

To sum it up: The Dems saw in the late 80s/early 90s that Texas was trending GOP (it had been a Dem stronghold since Reconstruction), so they redrew the map to ensure their own numerical superiority in Congressional districts for as long as possible. They did this by concentrating Republican voters into districts where they would have very heavy majorities, diluting their strength statewide. The result is inarguable: Texans have elected Republicans to all statewide offices and favor the GOP by about 56 or 54 %, yet the Dems lead the state's Congressional delegation, 17-15. The current effort to redraw the state's map will right the wrong done by the Dems in the early 90s.

I've finished reading the opinion, and I think Ben's comments above are apt. If you really want to analogize this to Bush v. Gore, then the comparison definitely should be between this Ninth Circuit panel opinion and the Florida Supreme Court's actions in 2000.

What struck me immediately about the opinion is the extremely casual disregard of the timetables contained in the California Constitution and the panel's very facile, very offensive assumption that it's more competent to determine what's in the "public interest" of Californians than they themselves are, as expressed through their state constitution.

I'll probably write at considerably more length on this topic, but at the expense of my own blog's bandwidth. Meanwhile, I'm still keenly interested in learning why Mr. Drezner thinks Texas redistricting is subverting democracy!

Tom writes:

The problem with the 9th Circuit Court’s ruling is that is sets a precedent to question any election where the punch card system is used, even though the punch card system has never been proven to be anymore troublesome than other forms of voting. ... The anecdotal evidence of people voting for Buchanan is interesting, but the electronic means of voting is largely untested and faces many problems from accidental software bugs to intentional software viruses.

1. The 9th Circuit ruling did not set the precedent. Bush v. Gore set the precedent.

2. The punch card system leads to more invalid ballots than other forms of voting currently in use in California, such as optical scanning. That evidence was before the court. Untested touch-screen systems are not the only alternative.

3. The "butterfly ballot" ballot-design problem in one Florida county that led to erroneous votes for Buchanan is unrelated to the problems posed by punch card voting. The Gore campaign never challenged that result (an independent individual did, and his suit was quickly thrown out).

Ben writes:

The 9th Circuit ruling has the same problem with dates & it ignores the fact that the legislature approved of the use of punch card systems.

I will say again: The basis for the U.S. Supreme Court's ruling in Bush v. Gore was not state law, but the Equal Protection Clause of the federal constitution. As a general matter, federal courts like the U.S. Supreme Court and the 9th Circuit cannot overrule state courts on issues of state law.(*) Federal law, including the Equal Protection Clause, trumps state law. The fact that the California legislature approved something does not matter at all if what was approved conflicts with the Equal Protection Clause.

(* An exception came up in the earlier stages of the election litigation. The Florida Supreme Court tried to resolve a conflict in the Florida election law in the way that a state supreme court ordinarily resolves conflicts and ambiguities in state law. Because Article II of the U.S. Constitution specifically bars changing election laws midstream, the U.S. Supreme Court in that rare instance had the authority to review the Florida Supreme Court's decision, and determined that the method of resolution chosen by the Florida Supreme Court violated Article II. The case was sent back to the Florida Supreme Court for further proceedings. The U.S. Supreme Court's final decision in Bush v. Gore -- the one that ended the election contest -- was not based on Article II.)

Link to early Bush v. Palm Beach case:
http://laws.findlaw.com/us/000/00-836.html

Link to final Bush v. Gore case:
http://laws.findlaw.com/us/000/00-949.html

Interesting discussion, guys, but I have to say (as an educated person who did not make law review at an Ivy League school--which makes me typical of the people who will be following this debate) I can't make heads or tails of the arguments. Which brings me back to Dan's original question: is this good or bad for democracy? Well, let's see. We have now entered a la-la land in which all voting processes that fail to achieve %100 accuracy and reliability(i.e. every single one of them) is subject to legal challenges after, and now BEFORE they take place.

I'm wracking my brain but I cannot think of a more pernicious trend in the history of democracy--this is a cancer threatening to eat our political process.

I'm no statistician either, but it seems to me the courts should impress upon all aggrieved parties that perfection is not an option and, regardless of what procedures are followed, what equipment is used, a margin of error will exist and that should not be equated with violating anyone's constitutional rights. We can call it the "shit happens" rule in election law.

I'm serious, this is getting absolutely out of controle.

Kelli is exactly right. That is why the LEGISLATURE was traditionally responsible for determining how elections were to be conducted. This is done PRIOR TO the election, realizing that no system can ever be perfect; the goal is to have a system that is reasonable under the circumstances. The FLA SCT decision upset this. Court intervention is to be reserved for the most egregious of circumstances. Everyone else who is disappointed should simply be encouraged to try again next time.

I think Alkali has a point, Bush vs Gore was lousy law and now its opened up a nasty kettle of fish. Had the Court made the argument strictly along Article II lines (which many scholars felt was a much stronger argument), this wouldnt be an issue. Article II is narrowly tailored regarding presidential election procedure. This equal protection racket could be a real monster. I can think of any number of scenarios where a particularly activist court can muck up an election based on any number of factors (polling hours, ballot types, heck theoretically if it was raining in one part of a state a court could postpone or reorder an election). Clearly there needs to be some component for a 'motive' to disenfranchise added to this decision.

Responding to Mark's comment:

1. The Article II argument in Bush v. Gore was not particularly strong. Rehnquist, Souter and Thomas agreed with the Equal Protection argument, but also contended that that there is no basis in Flordia law for requiring that improperly marked ballots be counted, and that the recount ordered by the Florida supreme court would have included improperly marked ballots -- in their eyes, a violation of Article II. However, the Florida statute said that any vote that a canvassing board determines shows a "clear indication of intent" is valid. It is hard to read that broad standard to mean that the legislature wanted only perfectly marked ballots to count. (Whether the legislature should have set that broad standard is a good question, but not one for the U.S. Supreme Court to decide.)

2. The concern that letting the equal protection genie out of the bottle is certainly valid. Adding a motive or intent requirement doesn't really resolve the problem, however; it just makes the litigation more complicated because it requires an inquiry into the state of mind of state officials. (Presumably no one would be so stupid as to say in public, "We don't want Smith County and Jones County voters to have their votes counted, and that's why we're giving them crap voting machines.")

"Devise a theory of judicial intervention that argues that either this Court of Appeals intervention or the U.S. Supreme Court intervention in the Florida recount was appropriate, but the other is not."

That's not too tough -- the Supreme Court's decision was wrong, but now it's binding precedent.

In Bush v. Gore, the Supreme Court held that Florida counties' different standards for recounting ballots violated the equal protection clause, because votes would not be treated equally. But this disparity in recounting methodologies simply mirrored the underlying disparity in counting methodologies -- as different counties used different voting devices, the offending disparity was inherent in the election process. And as there is no more uniformity among the states than there is among counties within a state, the unequal treatment that the Court found offensive in Bush v. Gore is and always has been a feature of every national and statewide election in the United States. Recognizing that the logic of its decision would invalidate every national and statewide election, the Court tried to characterize its decision as a one time pass. It will now be called upon to explain why that should be so.

Bush v. Gore was poorly done. It will be interesting to see how the Supreme Court tries to get the toothpaste back in the tube.

It was the Breyer-Souter-O'Connor-Kennedy holding that this case reveals as bad law; the Scalia-Thomas-Rehnquist argument holds up well. The problem in Florida was the state supreme court's extra-legal creation of new counting procedures. The equal protection argument was, most likely, an effort to restore the lawful outcome without undermining support for judicial supremacy by limiting the Florida court's powers.

The 9th Circuit ruling appears to greatly extend the Breyer et al reasoning, to the point of a reductio ad absurdum. I suspect a motive of the 9th Circuit judges was to discredit Bush v. Gore by forcing the Supreme Court to (apparently) reverse its reasoning in that case.

As for the commenter who questions whether a "delay" is the same as a "block," in the case of a recall election, a delay can be as good as a block -- delay till the next scheduled election, and the recall provisions have lost all their force.

Re Daniel's question on democratic theory, this represents a transfer of power from the people and written law to judges and judicial opinion. As such, it's a defeat for limited government.

"The problem in Florida was the state supreme court's extra-legal creation of new counting procedures. The equal protection argument was, most likely, an effort to restore the lawful outcome without undermining support for judicial supremacy by limiting the Florida court's powers."

Others have attempted to justify the anomalous equal protection holding on result-oriented grounds, most notably the 7th Circuit's Richard Posner. But the remedy for bad law is good law, not more bad law. There was no reductio necessary -- the Supreme Court's equal protection holding had already reached ad absurdum.

"Re Daniel's question on democratic theory, this represents a transfer of power from the people and written law to judges and judicial opinion. As such, it's a defeat for limited government."

But that was one of the problems with Bush v. Gore as well. Under 3 U.S.C. 15, the Congress is obliged to settle controversies in presidential elections. That process calls for the two houses of Congress to determine which electoral votes to count, with disagreements to be resolved by the governor of the state from which the disputed electors emerge. The legislative process set out under federal law was pre-empted by the Supreme Court in Bush v. Gore. As the Congress was controlled by the Republicans and GWB's brother was Florida's governor, this political process would inevitably have resulted in GWB's election. But that would have been messy, so the Supreme Court pre-empted it.

@#$%&!! Some people never learn.

pj writes:

It was the Breyer-Souter-O'Connor-Kennedy holding that this case reveals as bad law; the Scalia-Thomas-Rehnquist argument holds up well. ... The 9th Circuit ruling appears to greatly extend the Breyer et al reasoning, to the point of a reductio ad absurdum.

It's pretty strong to blame the majority opinion on Breyer, who dissented from it, and to excuse Rehnquist, Scalia and Thomas, who joined it. Breyer rejected two of the three equal protection problems identified by the majority, but conceded that "[t]he majority's third concern [i.e., the lack of a uniform standard] does implicate principles of fundamental fairness." (Souter similarly so held.) By contrast, the first sentence of Rehnquist's concurrence is, "We join the per curiam opinion," which means the Kennedy-O'Connor equal protection argument, and there was no qualification on that concurrence.

Dan,

The answer to your question is easy - the 9th Circuit decision postponed a duly called but not held election based on the possibility of a wrong, while the U.S. Supreme Court decision involved an election which had been held and for which there was an adequate record of the alleged wrongs. Postponing an election should be an exceptional remedy used only in the most egregious cases. The California recall election does not present an egregious situation.

I am a California trial court research attorney. The judges here I've talked to about this are pretty well agreed that this is the end of the 9th Circuit. Even my liberal Democratic wife, who graduated from Boalt (UC Berkeley's law school) agrees. We also agree that the split will take the form of putting all the bad eggs in one basket and dropping the basket, i.e., put the most reversed judges in the California part of the split and then not appoint new ones for a long time. The latter idea is to let retirement attrition reduce the number of appellate judges in the new California circuit, so the remainder's caseload soars. That will reduce their ability to do further damage, including by having their caseload be disproportionately criminal appeals.

IMO no new judges for the California circuit should be appointed until all or almost all of the original idiots have gone on "senior" status - no regularly assigned cases - at which time none of the new appointees should be federal district judges, and instead consist only of state court judges (mostly California state appellate courts) or lawyers with no judicial experience. The latter idea is to entirely destroy the old 9th Circuit's dysfunctional institutional culture. Appointing new California circuit court judges from the district court bench would tend to perpetuate the 9th's institutional culture, and so the federal district bench here should not have any upward mobility for at least 20 years.

The 9th Circuit seems to be doing an en banc rehearing on its own motion.

Dan, keep in mind that it is possible to reverse decisions on grounds unrelated to a controversy's merits. The weakness in this first 9th Circuit ruling lies in its remedy, as Dan pointed out. Even if the ruling is correct on the merits, postponement of the recall election, as opposed to the proposition elections, might not be a proper remedy.

I just read today's San Francisco Chronicle and found that its lead editorial questioned postponement of the recall as a remedy. Here's the URL and last sentence of the editorial:

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/09/16/ED246438.DTL

"... The threshold to stop a scheduled election should be extremely high."

I would point out that the best solution here would be for the State of California (i) to pony up the amounts to replace the voting machinery in the punch-card counties right away instead of a year from now as the state had agreed to do anyway, and (ii) to ask the Ninth Circuit to amend its stay to provide that the recall can be held on any convenient date as soon as replacement machinery can be provided.

First of all, the Ninth Circuit's citation of Bush v. Gore was a dishonest and smart-alec move by the Ninth. It demonstrated their arrogance, lack of judicial demeanor and partisanship perfectly. Bush v. Gore by its own terms isn't precedent, applying only to the facts of the presidential race. By citing to it, the Ninth Circuit forfeits the last shred of respect.

Bush v. Gore didn't say that you couldn't use punch card balloting. To oversimplify, it said you couldn't review such punch cards using different standards.

Secondly, the core of the case - despite the dishonest opinion of the Ninth Circuit panel - is that the merits of this claim had already been litigated and a final settlement reached that didn't affect this recall election. The district court opinion clearly lays this out, and the Ninth Circuit panel's treatment of the issue was dishonest and contrary to law.

Bush v Gore was a national election for president and within the purview of the Supreme Court of the US as a federal issue. California recall is purely a State issue. The Supreme Court would not normally have the authority to get involved here -however, since the 9th court is a federal court, which should never have been involved in this state matter (not only a state matter but one for which authority rests with the Legislature, not the courts), the Supreme court can get involved on the basis of resolving the issue of whether the 9th Court decision carries any weight since it is beyond that court's authority to rule on the matter. There is no precedent in Bush v Gore since the recall election is not national. Also, even if one stretches reality as the 9th court does on nearly every decision it makes, where, pray tell, is the problem? To assert BEFORE the election that the election should be stopped because there MIGHT BE a problem is certainly worthy of being thrown out of any court. This is not the Minority Report. So what we have is a ruling on something that has insufficient evidence (as in zero - since it hasn't HAPPENED YET) by a federal court (which has no state jurisdiction) on an issue reserved for the state legislature with no precedent. The liberal courts are a joke. R

I can't agree with using the example of the Texas redistricting as an example of Republicans subverting democracy. As a Texan (and an independent), I assert that it is rather the Democrats who have attempted to subvert democracy in this case.

The redistricting called for by the 2000 census was never completed in Texas, because the Texas Democrat party took the matter to court claiming that none of the proposed redistrictings then before the legislature were reasonable under the voting rights act. Essentially, the Democrats claimed that making districts as heavily minority as possible violates the rights of minority voters, notwithstanding that the Democrats themselves had been doing the exact same thing. They filed this suit in a court which attempted to not take it, but eventually had to resolve the issue because of impending elections.

As a result, the legislature is now attempting to actually complete the redistricting as they were required to do, rather than sticking with the (blatantly gerrymandered) map submitted by the Democrats to the court in 2001. If the Democrats were to stay in the legislature and fight to make the redistricting more fair, that would be reasonable. Instead, they are fighting to avoid redistricting, because they know that it removes effective electoral power from the vast majority of the State's voters, who no longer as a rule vote Democrat.

There are plenty of things that the Republicans have done that smell. Let's not invent more just to hide the odor eminating from the Democrats.

C'mon, Dan. You've stirred up a hornets' nest with your Texas comments. Start a new thread so we can keep kicking the Ninth Circuit around in this one. :)

Dan Ackerman's NY Times column today focuses on the remedy issue too, pointing out the vast difference between judicial intervention before the California and after the Florida election.

http://www.nytimes.com/2003/09/17/opinion/17ACKE.html

Thanks to all for some excellent points. Be sure to check out Mickey Kaus' take on this as well.

My extended take, which I wouldn't link-whore here except for the fact that I teased earlier (and no-one's likely reading this comment anymore anyway):

"Unrivaled judicial arrogance:   Southwest Voter Registration Education Project v. Shelley

http://www.beldar.org/beldarblog/2003/09/unrivaled_judic.html