Court to Decide Recall Fate

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This is a partial transcript of Special Report with Brit Hume, September 22, that has been edited for clarity.

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TONY SNOW, GUEST HOST: There you have former Vice President Al Gore (search) in full growl saying no on the recall of California Governor Gray Davis and also no on Proposition 54 (search), which is a ballot proposition that would outlaw collecting any information that would reflect people's racial backgrounds.

Joining us now to talk about the excitement in California, that is the fact that the full Ninth U.S. Circuit Court of Appeals will review a three- judge panel's decision to rule out the…to postpone the recall election until March is Douglas Kmiec, a constitutional law professor at Pepperdine University.

Professor Kmiec, thanks for joining us. First give us a sense...


SNOW: I don't know if you've had a chance to review the panel, the 11 who have been chosen by…you know, I guess they roll balls on the little thing and pulled out 11 names out of the 26 judges on the court. Any sense of how that panel breaks down, at least ideas logically?

KMIEC: Well, I think you can judge that somewhat, Tony, by what presidents appointed these members to the court. Eight of the 11 were appointed by Democratic presidents, three by Republicans, the panel is chaired by a Democratic appointee, Chief Judge Mary Schroeder. But the panel also has a reputation among litigants here in California as a reasonable and a moderate panel, not withstanding its original partisan domination by Democratic appointees.

SNOW: Give me your sense of the three-judge decision to…which argued, in effect, that the constitution of the Equal Protection Claus says that you can't have people voting by punch cards because they're disenfranchised. And therefore, the state ought to postpone the elections until March.

KMIEC: Well, of course, they purchase ported to rely upon Bush vs. Gore (search), but the difficulty about Bush…relying upon Bush verses Gore is that virtually everybody in the Bush verses Gore opinion, whether in the majority or in the dissent, said they weren't talking about voting equipment.

As you remember, the heart of the issue in Bush verses Gore was whether or not Florida had a method by which to recount votes. They didn't have a uniformed standard and so people were counting votes with different standards and that was producing nothing but chaos and irrationality. But the court was very careful to say, and indeed Justice Sutter is the clearest on this in his opinion for the dissent, saying that there is no violation of the Equal Protection Clause, merely because the state chooses to use different voting equipment and it has different levels of effectiveness.

It was hard for those of us who read the three-judge panel here to know how they could extrapolate out of Bush v. Gore, a principle of equality that just simply isn't there.

SNOW: Well, it's based on technology. And now it turns out that electronic ballot cards have a higher error rate than punch cards.

KMIEC: Well, exactly right. I mean one of the unintended consequences here is that the excuse is that was better technology. Well, the evidence in the trial records below was that the better technology, in fact, has its own problems. Touch-screen balloting doesn't leave an audit trail, so if there is a mistake, and then there is a need for a recount, you don't really have the availability to do a recount. And the differences among these technologies really is quite small.

So, one of the things that really concerned us, until the announcement of the rehearing today, is that the state recall process, which is called for in the constitution, in which a million and six voters in California called for was going to be set aside by a really improper and aggressive federal intervention. And we're hoping that the 11-judge panel will correct their error and there will be no need to go to the Supreme Court.

SNOW: Now, I've been told by people who observe such things, that when they have an en bank hearing at the Ninth Circuit, it usually means that they do in fact intend to do…to gather to reverses a smaller panel's opinion. I'm sure that's not an unbreakable rule, but is it a rule of thumb in such proceedings?

KMIEC: Indeed, Tony, it is. They take very few en banc reviews. They get hundreds of petitions to do so every year; they take less than a dozen. So first of all, the fact that they take them is a measure of the significance of the case. And second, they almost always take them because the panel perceives a majority of the court in this instance perceives that there is something gravely wrong.

It is interesting that the random process did not include any of the three judges who were on the original panel. It was possible for them to serve, but their name did not come up. And in addition, three of the most liberal members of the court, including one who participated in the famous Pledge of Allegiance decision in which the Ninth Circuit struck the words "under God" from the Pledge of Allegiance recused themselves from this case because they have family members or other interests that conflict with the underlying issue.

SNOW: How rapidly should we expect the court to render a verdict?

KMIEC: Well, the argument is scheduled for 1:00 Pacific Time Monday. Each side has 30 minutes to argue their position. I think we can expect reasonably, a decision the following day by midday Tuesday at the latest Wednesday morning. Tony, if I was a clerk for the court and writing the opinion, I would just say opinion reversed, vacated, and remanded, see Bush verses Gore, majority and dissenting opinions. You wouldn't have to say much more than that because that really says it all.

The attempt to remake this case into a violation of equal protection is really is an up tem…is really an awful exercise of judicial imperialism, designed to obstruct the political process.

SNOW: OK. Very quickly, do you think the judges already have their minds made up on this one?

KMIEC: I think the judges have studied this issue. I think many of them have reached a tentative conclusion. I would be surprised if the oral argument is going to change very many minds.

SNOW: All right. Douglas Kmiec, thanks for joining us.

KMIEC: Good to be with you.

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