Such arrogance and assumption of power by one individual is not acceptable in our judicial system.
— Judge Stephen Reinhardt, concurring, in Townley v. Miller. A Ninth Circuit panel stayed a district court’s preliminary injunction order in a case involving Nevada’s “none of these candidates” ballot option.
(More about this interesting and politically charged case, after the jump.)
Notwithstanding my jokey headline — just kidding, Judge Reinhardt! — it seems the Ninth Circuit had reason to be upset. Our tipster explains:
Some background: Nevada has long allowed its voters to express their displeasure in the voting booth by selecting a “none of these candidates” option…. In the current political climate, this is widely believed to hurt Mitt Romney, as dissatisfaction with President Obama and the current state of the economy doesn’t exactly translate into enthusiasm for Romney, so voters might just vote for the “none of these candidates” option instead.
Republicans, wanting to stop this, filed a lawsuit a few months ago (even though this statute has been on the books for nearly 37 years), seeking to enjoin the Nevada Secretary of State from having ballots printed that included the “none of these candidates” option, arguing that it somehow infringed on voting rights (even though the “none of these candidates” doesn’t actually impact the election — the named candidate on the ballot with the most votes still wins). The district court judge — Chief Judge Robert C. Jones, a George W. Bush appointee — agreed orally, but he refused to issue a written opinion, despite knowing that Nevada had to start printing ballots on September 7 if it was going to get them all done in time. He apparently believed that without the written opinion, the State could not appeal, thus making his order unappealable (because the printing deadline would have passed, meaning it would be too late to halt the election machinery already in the works). What’s more, he’d repeatedly delayed the hearing on the preliminary injunction, delayed in reassigning the case (after the original judge recused himself), and even after the Ninth Circuit accepted the appeal, continued to argue that the Ninth Circuit didn’t yet have jurisdiction over the appeal. Plus, he refused to stay the order pending the appeal.
Unsurprisingly, the Ninth Circuit panel didn’t like this, and it unanimously granted the stay pending the appeal. Judge Reinhardt particularly didn’t like it, and wrote a separate opinion calling out the district judge for his various “attempts to evade appellate review” and to “frustrate our ability to entertain a stay pending appeal,” which Judge Reinhardt called “particularly egregious.” He closed thusly: “Such arrogance and assumption of power by one individual is not acceptable in our judicial system.” Ouch.
Ouch indeed. But it’s worth noting, as our tipster did, that the panel voted unanimously to grant the stay pending appeal (even if Judge Reinhardt’s benchslap was part of a separate concurrence). And the other two judges — judicial superhottie Kim McLane Wardlaw, and castle-owning Carlos Bea — are not nearly as liberal as Judge Reinhardt. Judge Bea, in fact, is one of a handful of high-profile conservatives on the Ninth Circuit.
P.S. Random tidbit: Ross Miller, the Nevada Secretary of State, was an amateur MMA fighter — who won his only bout and then promptly retired.
P.P.S. If you’re interested in Ninth Circuit gossip and scuttlebutt, this new project of mine might interest you.
Townley v. Miller: Amended Order [U.S. Court of Appeals for the Ninth Circuit]
Ninth Circuit: Nevadans Can Still Vote for ‘None’ [WSJ Law Blog]
Why the ‘none of these candidates’ option matters in Nevada (and why it doesn’t) [Washington Post]
Supreme Ambitions: Preface