Southwest Voter Registration Education Project v. Shelley
California residents use many different methods to vote, including error-prone punch-cards, a method the California Secretary of State had begun to replace. However, a Ninth Circuit Panel consisting of Judges Pregerson, Thomas, and Paez, issued an anonymous ruling which required the October 2003 special election be postponed if the changes are not in place. The panel decided that the changes couldn’t wait for the next general election because the punch-card method violated the Equal Protection Clause of the Fourteenth Amendment.
The anonymous opinion of the Court is far from constitutional. First of all, the justices exercise Judicial Imperialism, for after conceding that overseeing elections is the job of the legislature and the Secretary of State, they make the decision that the upcoming election cannot go on because of one method of voting. Such a decision—as the Court acknowledges—rightfully belongs to other branches of government, yet the Court assumes the power anyway. But the activism doesn’t stop there; the panel is also guilty of Abusing Precedent. As Harvard law professor Einer Elhauge observes, this decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.” The Court believes this to be necessary because of a violation of the Fourteenth Amendment’s Equal Protection clause, yet this belief Contorts the Text of the amendment, twisting its original meaning into something totally different. The Equal Protection clause was originally understood to codify the 1866 Civil Rights Act, ensuring equal and unimpeded access to voting for all Americans. It was not intended to require changes in voting method simply due to changing times.
The punch-card method of voting was not perfect, and the process of correction was already being put in place by the appropriate government authorities. Thus, a more constitutional judge would have rejected the petitioner’s argument and deferred to the legislature and Secretary of State to address the practical—not constitutional—problem of punch-card voting. And in fact, this decision was too activist even for the Ninth Circuit; less than a week later, the full Court overruled this opinion and permitted the election to precede on schedule.
Court & Reporter NumberNinth Circuit, 344 F.3d 882
Type(s) of Activism
- Contorting Text
- Abusing Precedent
- Judicial Imperialism
Area(s) of law
- Election Law
- Equal Protection
- Richard A. Paez
- Harry Pregerson
- Sidney R. Thomas