September 23, 2003 - The Ninth Circuit Court of Appeals sitting en Banc has ruled superceding the opinion of its three judge panel and affirming the trial court’s denial of a preliminary injunction delaying California’s recall election until March. That is what the court did but it is also important to not both the rationale for its decision and what the court did not do. The rationale turned on the fact that the election had already began. “… [O]ur law recognizes that election cases are different from ordinary injunction cases. See, e.g., Reynolds v. Sims, 377 U.S. at 585. Interference with impending elections is extraordinary, id., and interference with an election after voting has begun is unprecedented.” ,the court said.

The en Banc panel looked to the fact that the election process has already begun, that hundreds of thousands of absentee ballots have already been cast, that much public money has already been invested in preparing for the election and this the status quo ante could not be restored. The Court resolved the question of balancing the hardships in favor of the District Judge’s ruling. It also held that the Plaintiff’s had not shown that the substantial likelihood of success on the merits on their equal protection claim in that it was a subject upon which reasonable jurists could differ. Acknowledging that the Plaintiff’s claim under the Voting Rights Act may well be stronger it noted that until the election is held and the effects known then the evidence that pointed to a deprivation was speculative. In essence it ruled that the case was not ripe for adjudication and the resolution of the Constitutional issues raised must abide the result. On that basis it held that the October 7th election should proceed as scheduled.

What the en Banc panel did not do was hold that either the Equal Protection claim or the Voting Rights claim were unfounded. It did not dismiss the lawsuit. It only affirmed the trial courts denial of a Preliminary Injunction. The lawsuit remains active and undetermined on the merits. While the October 7th balloting will proceed it will do so under the cloud of the Supreme Court’s teaching in Bush v. Gore, subject to the uncertainty of the litigation. After the votes are counted and any necessary recounts have been completed – or at least commenced – then the case will be ripe for a determination of the merits of the constitutional and statutory claims.

The best that can be hoped for is that California voters avoid the kind of razor thin margins that afflicted the 2000 Florida result. Unless they do Bush v. Gore may still bite back.