In a remarkable smackdown by federal court standards, the U.S. Court of Appeals for the Ninth Circuit assumed jurisdiction over a Nevada elections case this week, with one Ninth Circuit judge accusing the chief judge of Nevada of deliberately trying to run out the clock till the Sept. 7 deadline for printing the ballots.
Chief Judge Robert Jones "has deliberately attempted to avoid entering any order that would allow an appeal before that date," Ninth Circuit Judge Stephen Reinhardt wrote in a concurrence to the Sept. 4 order granting the state's request to get before the appellate court. "His dilatory tactics appear to serve no purpose other than to seek to prevent the state from taking an appeal of his decision before it must print the ballots."
At issue is a 37-year-old law that allows Nevada voters to mark their ballot "none of these candidates." A lawsuit said to be financed by the Republican National Committee was filed in June seeking to invalidate that option, apparently on the theory that it could siphon off anti-Barack Obama votes from Mitt Romney in the presidential election this fall.
According to Reinhardt's concurrence, Jones, an appointee of George W. Bush, assigned the case to himself after the assigned judge withdrew. He then waited three weeks to set a hearing for Aug. 22, despite both sides' request for expedited briefing, according to Reinhardt. Two days later he entered a minute order granting the injunction, but -- with the Sept. 7 deadline for printing ballots looming this week -- had not issued a "reasoned opinion," in Reinhardt's words.
The Ninth Circuit's motions panel, consisting of Reinhardt and Judges Kim McLane Wardlaw and Carlos Bea, stayed the order Tuesday pending appeal and published it today.
Failure to act by the Ninth Circuit, Reinhardt wrote in his concurrence, "would allow the district court to erroneously invalidate Nevada's long-standing election process and to deprive its citizens of their right to participate in presidential elections in the manner that the law prescribes" without review by the Ninth Circuit or the Supreme Court. "Such arrogance and assumption of power by one individual is not acceptable in our judicial system."
[Note: This item has been corrected to reflect that Jones was appointed to the district court by George W. Bush, not the senior George Bush.]