Justice Kennedy, in his capacity as Circuit Justice for the Ninth Circuit, has enjoined the counting of ballots in an upcoming election in which only those with Native Hawaiian ancestry may vote. (Via Adam Liptak).
What does Justice Kennedy’s action mean? I think it means there’s a fairly good chance this issue eventually ends up on the merits at the Supreme Court, where the Court’s earlier decision in Rice v. Cayetano renders this election procedure potentially a violation of the Fifteenth Amendment’s prohibition on racial criteria for voting.
Also interesting is the remedy: allow the election but don’t allow the counting of the ballots. The applicants did not ask to stop the election, which is set for November 30, but to enjoin the counting of votes. That’s the remedy that Justice Kennedy ordered:
IT IS ORDERED that the respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending further order of the undersigned or of the Court.
This reminds me of the dispute between Justices Scalia and Stevens [corrected] in the Bush v. Gore stay order over whether to halt the counting of certain ballots in the state of Florida (which had been ordered by the Florida Supreme Court) while the U.S. Supreme Court continued the case. Justice Scalia said that allowing the count to go forward, only to potentially have those results reversed by the Supreme Court, would cast a cloud of illegitimacy over George Bush’s election (“The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”). Justice Stevens, in contrast, said that stopping the counting (and essentially allowing the clock to run out) cast a cloud over the legitimacy of the election (“Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election”).
Here too, the argument for not announcing the results must be one concerned about the legitimacy of the election: announcing the results, only to have the election declared illegal later, could potentially undermine the voters’ faith in the process.
But how many people now won’t vote, hearing that the election may not be valid? Doesn’t Justice Kennedy’s order itself affect the legitimacy, and potentially the outcome, of the election?
OK, now back to your Black Friday shopping.
UPDATE: It has been pointed out to me that this could be in the nature of an administrative stay, pending further order of the Court while the Court is on a holiday schedule. Nonetheless, the point about the order potentially affecting the election itself still stands.