Post Office Box 193939 San Francisco, California 94119-3939
Cathy A. Catterson Clerk of Court (415) 556-9800
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.
Southwest Voter Registration Education Project v. Shelley, 03-56498
Opinion Filed: 9/ 15/ 03
Panel: Judge Harry Pregerson Judge Sidney R. Thomas Judge Richard A. Paez (per curiam)
The panel reversed the district court's denial of a preliminary injunction in
plaintiffs' action alleging that the use of obsolete punchcard voting systems in the
October 7, 2003, California special election in some counties (Los Angeles,
Mendocino, Sacramento, San Diego, Santa Clara and Solano counties) rather than
others will deny voters equal protection of the laws in violation of the United States
Constitution. At the special election, California voters will be asked to vote on the
recall of the California governor and two state propositions: Proposition 53, a
proposed amendment to the California Constitution that would dedicate part of the
state budget each year to state and local infrastructures, such as water, highway,
and park projects; and Proposition 54, another proposed amendment to the
California Constitution that would prevent the state from collecting or retaining
racial and ethnic data about health care, hate crimes, racial profiling, public
education, and public safety. The panel held that the district court erred as a matter
of law in denying the preliminary injunction with respect to the vote on Propositions
53 and 54 and the gubernatorial recall.
The panel concluded that the plaintiffs had demonstrated a likelihood of
success on the merits of their equal protection claim that there is no rational basis
for using, in some counties and not others, pre-scored punchcard voting systems
that the California Secretary of State has decertified as "unacceptable." The panel
further held that the plaintiffs' action is not likely to be barred by the res judicata
effect of a prior action challenging the use of pre-scored punchcard ballots,
1
1
Page 2
Page 2 of 2
Common Cause v. Jones (C. D. Cal. 2002) (No. 01-03470), nor by the doctrine of
laches.
The panel agreed with the district court that the plaintiffs would suffer
irreparable harm if preliminary injunction relief is not granted because there is no
possible post-election remedy.
The panel next concluded that the balance of hardships tipped sharply in
favor of plaintiffs as to the question of voting on the state propositions and slightly
in favor of plaintiffs as to the question of voting on the gubernatorial recall.
In evaluating the public interest, the panel held that the balance falls heavily in
favor of postponing the election for a few months.
Accordingly, the panel enjoined the Secretary of State from conducting an
election on any issue on October 7, 2003.
Next Possible Procedural Steps: The panel directed the Clerk of Court to issue
the mandate forthwith, but stayed the order for seven days to allow the parties to
seek further relief from the panel's decision, if they so desire. The parties may seek
panel rehearing or en banc rehearing in this court, and they may petition for review
in the United States Supreme Court.
Lead Counsel for Appellants:
Mark D. Rosenbaum 213/ 977-9500
Catherine E. Lhamon 213/ 977-9500
Daniel P. Tokaji 614/ 292-6566
Lead Counsel for Appellee:
Douglas J. Woods 916/ 324-8835
Lead Counsel for Intervenor:
Charles P. Diamond 310/ 553-6700
2