Carl Lewis' run back off again

by: the_promised_land

Thu Sep 22, 2011 at 01:31:16 PM EDT

The same three judges that ordered that Lewis be on the ballot just last week today took him off the ballot. Thomas Ambro and Thomas Vanaskie, both Democratic appointees, reversed their votes and joined Republican appointee Anthony Scirica, who had voted in the minority last week, for a unanimous decision. (If there's a silver lining, it's good to see the lack of pure partisan politics by judges and some display of an independent judicial system - which we, at least some of the time, still have).

This may from the headlines seem like just another turn in the long road of Lewis' on again, off again run, but it's much more than that. And it's probably the end of the road. For more on why, read below the fold.

Second, the court did this in a really weird way. I wrote last week about how the key factor in the court's decision was its decision to employ the "compelling interest" standard instead of the "rational basis" standard. Well, in this week's decision it's back to the rational basis standard. It is very weird to see a panel not only reverse itself, but also change its mind about a very basic question of what standard of law applied.

So what really happened here? A clue is in the panel's order calling for reargument, where the panel laid out three questions:

(1)  Can a person be a citizen of two states?
(2) What are the requirements of California law for a person to vote in that State?
(3)  To what extent can a federal court interpret a state constitution?

#1 and #2 are tough questions for Lewis' lawyers and kind of no-win questions. A person can't really be a citizen of two states, for example - that seems like a self-evident proposition.

These questions seem to have become the focus of the argument, according to media reports, and the decision. Basically, Judge Ambro asked a bunch of questions about Lewis having voted in California in 2009. It seems that as he started to write the full opinion based on last week's order, and reflect on what happened, that stuck in his mind.

There's a famous saying - bad facts make bad law. Once the bad fact - of Lewis having voted in CA - got stuck in the judges' minds - it led them to reconsider the "compelling interest" standard. As I wrote in last week's post, it's hard for Lewis to lose once you get to that standard; and it's hard for Lewis to win under the more relaxed "rational basis" standard. So if the facts dictated Lewis winning, the more relaxed standard perhaps has to be used (or maybe it had to be used to get the panel all on the same page). And it's not great precedent for ballot access issues more generally.

So what happens next? Basically, Lewis' lawyers could go to the Third Circuit en banc, or to the U.S. Supreme Court. An announcement is due tomorrow morning. But there's not much time before ballots are finalized, and the unanimous decision by a range of judges on the panel makes it less likely that we'll see a reversal.