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More Farrakhan Coverage

Following up on yesterday's post about the Ninth Circuit's decision to let murderers vote, even while still in prison, here is more coverage: Bob Egelko in the SF Chron; Jonathan Martin in the Seattle Times; Doug Berman at SL&P; Rick Hasen at Election Law blog, twice.

Egelko and Martin quote state officials (SecState and AG, respectively) saying they will appeal further. Berman agrees with me that the case is certworthy for SCOTUS if the Ninth doesn't reverse it en banc. Hasen is "not so sure. The Court turned down the earlier cert. petition in this case, as well as cases raising the same issue from other circuits." Yes, but this is now a final judgment, and there is now a much sharper circuit split. See pp. 125-126 of the slip opinion. Those are big differences for certiorari.

I think the chances of correction en banc are very good, though. Dissenting Judge McKeown, a relatively moderate Clinton appointee, is much closer to the Ninth's ideological center of gravity than the two in the panel majority. If the case is taken up in the Ninth's unique "limited en banc" procedure, now-Chief Judge Kozinski, who dissented from denial of en banc last time, is now guaranteed a seat on the 11-judge panel, with the other 10 chosen at random.

If the Ninth en banc does overturn the panel and affirm the district court, that would leave the prisoners with a certiorari petition to SCOTUS with no circuit split -- a longshot, to put it mildly.

Update (Wednesday 9:20 PDT): Apparently Wash. AG McKenna has decided to skip the rehearing en banc petition and go straight to SCOTUS. Jonathan Martin has this updated story in the Seattle Times:

Washington state will appeal to the U.S. Supreme Court in an attempt to overturn a surprising federal court ruling that tossed out the state's 120-year-old prohibition against voting by incarcerated felons, Attorney General Rob McKenna said today.
Not the way I would have done it.

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