Showing posts with label Proposition 8. Show all posts
Showing posts with label Proposition 8. Show all posts
Prop 8 Oral Arguments In Federal Court Today
There is excellent coverage all over the web, by Rex Wocker, Karen Ocamb, Joe Jervis and Chris Geidner, just to name a few.
These Three Men Will Decide Fate Of Proposition 8
 |  |  |
| Hawkins | Smith | Reinhardt |
The 3-member panel for the 9th Circuit Court of Appeals who will hear oral arguments on Monday December 6th in the federal Proposition 8 case, Perry v. Schwarzenegger, has been announced. It consists of the most liberal member of the gigantic 26-member 9th Circuit, Hon. Stephen Reinhardt (appointed by Carter in 1980), a moderate jurist named Hon. Michael Daly Hawkins (appointed by Clinton in 1994) and a right-wing ideologue, N. Randy Smith (appointed by George W. Bush in 2007).
Most commenters think that the make-up of the panel indicates a likely 2-1 decision in favor of the good guys (supporters of marriage equality), which will probably get appealed to an 11-member panel of the 9th Circuit called an en banc panel. From there, it's direct to the Supreme Court of the United States, the highest court in the land.
CA-AG: Cooley Concedes! Kamala Harris Wins!
The next Attorney General of California (will be a Black/multiracial woman)
As MadProfessah has been saying for awhile, Kamala Harris will be the next Attorney General of California, after all. Her opponent Steve Cooley finally officially conceded the race today as it became more and more apparent that Harris' current lead in the excruciatingly close race was insurmountable.
The latest tally has Harris with 4,376,509 votes (or 46.0%) versus 4,324,924 votes (or 45.5%) for Cooley, a lead of 51,585 votes out of 9.5 million votes cast for Attorney General (there were 4 minor party candidates). Note, starting in November 2010 general election ballots in California will only ever have two candidates (with no write-in provision), thanks to the ill-conceived Proposition 14 which passed in June 2010. That, along with "non-partisan, "citizen-driven" re-districting should make 2012 a wild and crazy year for electoral politics, even in the deep blue state of California.
It should also be noted that Cooley received some 300,000 votes more than his party's ill-fated standard bearer, failed gubernatorial candidate ("such a lovely ring to it, dontcha think?" Meg Whitman and 150,000 votes more than that (rhymes with "witch") failed U.S. Senate candidate Carly Fiorina.
It also means that the Governor, Lieutenant Governor, Attorney General all explicitly support marriage equality and oppose defending Proposition 8 in court. since they believe it is unconstitutional. In fact, I would wager every single statewide elected official in California supports marriage equality at this point (since they are all Democrats!)
It should also be noted that Cooley received some 300,000 votes more than his party's ill-fated standard bearer, failed gubernatorial candidate ("such a lovely ring to it, dontcha think?" Meg Whitman and 150,000 votes more than that (rhymes with "witch") failed U.S. Senate candidate Carly Fiorina.
It also means that the Governor, Lieutenant Governor, Attorney General all explicitly support marriage equality and oppose defending Proposition 8 in court. since they believe it is unconstitutional. In fact, I would wager every single statewide elected official in California supports marriage equality at this point (since they are all Democrats!)
CA-AG: Harris Has Insurmountable Lead of 43,050!
Kamala Harris now leads Steve Cooley by 43,050 votes (4,291,854 or 46.0% to 4,248,804 or 45.5%). According to the Secretary of State's office (pdf) there are are now 629,634 unprocessed ballots, with 361,588 provisional ballots and 228,854 vote-by-mail ballots. Los Angeles County has the most number of outstanding ballots, left to be counted 93,590 (73,928 of which are provisional). 82% of provisional ballots are usually counted. The thing to note is that Harris won on election day (when provisional ballots are turned in by approximate 3 percentage points and she lost vote-by-mail ballots by 8 percentage points. Of the ballots left to count, Cooley should be expected to have a net gain of 10K-20K votes at most.
(He wins VBM ballots netting approximately 20K votes but loses provisional ballots by 8K votes.)
Basically, we are where we were on election night when Harris had a slim lead but today there are far less votes to be counted, dramatically reducing Cooley's chances of retaking the lead. I'm still slightly worried that the percentage of votes left to be counted consists of less than 20% from Los Angeles County, but Harris won other relatively large counties by good margins as well. Also, there are some indications that the unprocessed ballot number is too high, making things even tougher for Cooley.
It is mathematically possible for Cooley to win but the probabilities are in the 1-2% range (he would have to win the outstanding ballots at net rates of 7-8% which the rest of the sample simply does not reflect). Los Angeles County Council President Eric Garcetti (and former Occidental College professor) called the race for Harris yesterday and urged media outlets to do the math to show how slim the possibility of Cooley winning actually is. Garcetti actually estimates that there are far LESS uncounted votes than in the unprocessed ballot status page since some of the counties have not updated their numbers in over two weeks and the total vote count is approaching 9.6 million. We'll probably hit 10 million votes cast statewide by the time everything is counted and certified next month.
Prop 8 Federal Appeal Will Be Televised On Dec. 6!
These facts have been known for awhile. The new information is that apparently the oral arguments in the Perry appeal will now be televised by C-SPAN and local channel KGO. This is a big deal, because the lower court was intended to be broadcast as well but the heterosexual supremacists defending Proposition 8 objected and appealed all the way to the United States Supreme Court who overruled Judge Walker and banned the broadcasting of the oral arguments just days before the trial was scheduled to begin this past January.
Here are the details of the hearing on Monday, which will be in two 2-hour segments. The first session will be on whether the Proposition 8 propnents have "standing" to actually continue defending the statue, since the official parties to the lawsuit (the Governor and Attorney General) have refused to defend the voter-passed initiative in court. The second hour will be about the constitutionality of Proposition 8 itself.
The names of the judges who will hear the appeal have not been released yet. Whoever loses at this level will appeal to the United States Supreme Court, who may or may not accept the case.Filed clerk order (Deputy Clerk:KKW): The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.. [7545517]
WATCH: EQCA Tries To "Shame" Whitman and Cooley
In light of statements by Republican candidates Steve Cooley and Meg Whitman that they would defend any court ruling in the Perry v. Schwarzenegger case striking down Proposition 8 as unconstitutional, Equality Califorina is launching the following television ads.
Whitman's gubernatorial opponent, Jerry Brown, is the current Attorney General and has refused to defend Proposition 8, as has current Governor Arnold Schwarzenegger. San Francisco District Attorney Kamala Harris is running against Cooley for Attorney general and has said she would not defend Proposition 8 in court because she feel it is unconstitutional.
The ads are set to begin airing on Monday, September 27, and will run on the CNN, FOX and MSNBC affiliates in the Los Angeles, San Francisco, Sacramento, San Diego and Palm Springs metropolitan areas
Whitman's gubernatorial opponent, Jerry Brown, is the current Attorney General and has refused to defend Proposition 8, as has current Governor Arnold Schwarzenegger. San Francisco District Attorney Kamala Harris is running against Cooley for Attorney general and has said she would not defend Proposition 8 in court because she feel it is unconstitutional.
The ads are set to begin airing on Monday, September 27, and will run on the CNN, FOX and MSNBC affiliates in the Los Angeles, San Francisco, Sacramento, San Diego and Palm Springs metropolitan areas
CA Sup Ct Refuses To Force State To Appeal Prop 8
As I blogged about earlier in the week, the Pacific Justice Institute sued the Governor and Attorney General on Monday to attempt to force them to defend Proposition 8, but the 3rd District Court of Appeals rejected their argument. Now the state's highest court has also rejected their legal argument.
The court did not explain why it rejected the emergency petition filed by the Pacific Justice Institute. The institute had argued that the attorney general and governor were required to uphold all laws, including initiatives passed by voters.
Earlier Wednesday, lawyers for Attorney General Jerry Brown and Schwarzenegger filed letters with the court maintaining state officers have authority to choose which laws they challenge or defend in court.
"The governor, like any litigant, has complete discretion over his own litigation strategy, including whether or not to appeal an order," counsel Andrew Stroud wrote for Schwarzenegger. "Here, the governor exercised his discretion and decided not to file an appeal."
[...]
Schwarzenegger, who has been under pressure from fellow Republicans to appeal Walker's decision, has said he supports the judge's verdict. Brown, who is the Democratic nominee to succeed Schwarzenegger as governor, has said he cannot defend Proposition 8 because he agrees it is unconstitutional.
"Although it is not every day that the attorney general declines to defend a state law, the state Constitution or an initiative, he may do so because his oath requires him (to) support the United States Constitution as the supreme law of the law," Deputy Attorney General Tamar Pachter wrote on Brown's behalf Wednesday.
The coalition of conservative and religious groups that sponsored Proposition 8 has appealed Walker's ruling to the 9th U.S. Circuit Court of Appeals. But doubts have been raised about whether its members have authority to do so because as ordinary citizens, they are not responsible for enforcing marriage laws.
The 9th Circuit has said that is one of the issues it will take up when it hears oral arguments in early December.
If the federal appeals court dismisses the appeal because the ban's proponents lack legal standing, Walker's ruling would become final unless the U.S. Supreme Court agrees to take up the case.All people interested in marriage equality will be watching the 9th U.S. Circuit Court of Appeals arguments very closely in this case. It would sort of be unfortunate f the case was decided on a relatively abstruse legal point like standing, instead of the very importantfederal constitutional issues raised in Walker's District Court opinion of August 4.
Appellate Court Rejects Attempt To Force Prop 8 Appeal
Recall that earlier this week heterosexual supremacists from the Pacific Justice Institute sued the Governor and Attorney General claiming that they were trying to avoid a "constitutional crisis" by forcing these elected officials to appeal Proposition 8 in federal court, even though both men have declared their belief that the measure violates the U.S. constitution.
On Thursday came word that their lawsuit was summarily rejected. by the 3rd District Court of Appeals:
On Thursday came word that their lawsuit was summarily rejected. by the 3rd District Court of Appeals:
The institute said it would file an immediate appeal to the state Supreme Court in hopes of getting a reversal by Sept. 11, the deadline for state action in the Prop. 8 case.
"When the people peacefully enact a constitutional provision and the attorney general refuses to give them meaningful review in the federal judiciary, then you have a veto by the executive branch," said the institute's lawyer, Kevin Snider. "That is a constitutional crisis, usurping the power of the people."The reason why this legal skirmish is important is that there is a very live question of who has "standing" (or legal authority) to appeal Judge Vaughn Walker's ruling declaring Proposition 8 violates the federal constitution. The 9th Circuit Court of Appeals will hear the appeal the week of December 6th.
Homophobes Sue Schwarzenegger and Brown To Force Prop 8 Appeal
Word comes today that heterosexual supremacist losers in the Perry v Schwarzenegger lawsuit are seriously worried about not having standing to appeal the federal lawsuit, so they have sued the state defendants Attorney General Jerry Brown and Governor Arnold Schwarzenegger in state court in an attempt to force them to defend Proposition 8.
Equality California's executive director Geoff Kors said:
Brown has said both in legal filings and public statements that he has sworn to uphold the state and federal constitutions and therefore can not defend Proposition 8 because he thinks it is an unconstitutional violation of gay Californians' civil rights.
"The attorney general does not believe that he can be forced to prosecute an appeal of a decision with which he agrees," Brown spokeswoman Christine Gasparac said Tuesday.
In seeking to make the state file an appeal, Pacific Justice Institute is trying to address the possibility that the case might get short-circuited before the 9th Circuit can consider if Proposition 8 passes constitutional muster.Most experts think that it is very doubtful that a state court will attempt to compel another branch of government to defend a federal lawsuit.
Equality California's executive director Geoff Kors said:
“This is an outrageous attempt to try and force elected officials who have sworn to uphold the United States Constitution to defend a law that the Federal Court has found to be unconstitutional. It demonstrates their acknowledgement that the proponents of Proposition 8 lack standing to appeal, that the case should be dismissed and loving same-sex couples should be allowed to exercise their constitutional right to marry.”
9th Circuit Issues Stay On Perry; Expedites Appeal
Today, the 9th Circuit Court of Appeals granted a stay in Perry v. Schwarzenegger, a.k.a. "The Prop 8 case" which means that same-sex couples will not be marrying in California any time soon.The decision overturn's Judge Vaughn Walker's denial of a stay last Thursday of his previous landmark decision issued last Thursday. The 9th Circuit also set an expedited schedule for the court, setting a trial date for the week of December 6th, 2010.
Here's the order at the special website the 9th circuit has set up for the case:
“Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
IT IS SO ORDERED.
There are several significant part of this one-page ruling. 1) Having a federal appellate trial less than 4 months away is incredibly fast for appellate litigation. The Prop 8 proponents have to file their brief by September 17th (1 month away) and our side a month after that and then the bad guys get to respond two weeks later and then oral arguments commence two weeks after that. There is no time frame as to how long after oral arguments the 9th Circuit will issue its ruling,, but it is signalling that it wants to dispose of the case quickly. 2) The last sentence asking for a discussion (see students, it's an essay prompt!) about why the appeal should not be dismissed for lack of standing is also a plus on our side.
CA GOV and CA AG Oppose Stay in Prop 8 Case
The State of California filed motions today opposing a stay in Judge Vaughn Walker's landmark decision ruling Proposition 8 unconstitutional; in other words Governor Arnold Schwarzenegger and Attorney General Jerry Brown are on record saying they want same-sex couples to be able to get married while the decision is on appeal.
As governor, Schwarzenegger is named as a defendant in the case, although he remained neutral in the lawsuit challenging Proposition 8. The governor was against the initiative when it was on the ballot and chose not to defend the constitutional amendment in court. He filed his brief Friday in his role as a named defendant and on behalf of two other administration officials.
The Schwarzenegger administration contended in the brief that there is no governmental or public interest in continuing a ban on gay marriage after Walker's decision." Instead, the administration said that allowing such marriages to resume would further the state's interest in recognizing the rights of gays and lesbians. It also said that there would be no administrative burden for the state to issue marriage licenses to gay and lesbian couples. California issued 18,000 such licenses before passage of Proposition 8.
Schwarzenegger applauded Walker's decision earlier this week.
"For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves," the governor said in a statement Wednesday.
California Attorney General Jerry Brown, a Democrat, filed a similar motion. Brown had argued that Proposition 8 was unconstitutional when the measure went before the California Supreme Court last year.
Read Attorney General's motion below.
Walker Stays Ruling Until Friday August 6
The Court has issued the following statement:
ORDER granting [706] Motion to Shorten Time. Plaintiffs,
plaintiff-intervenor and defendants are DIRECTED to respond to Doc #705 on
or before August 6, 2010. The clerk shall STAY entry of judgment herein
until the motion to stay pending appeal has been decided. (vrwlc1, COURT
STAFF) (Filed on 8/4/2010)
This means that no same-sex couples can get married right now. A hearing will be held on Friday August 6th and then the Judge will rule on the possibility of a stay. Even if he does NOT issue a stay, it is very likely that the 9th Circuit Court of Appeals will do so, pending the appeals process.
Interview With Dave Fleischer: Prop 8 Report Author
Dave Fleischer is the author of the 509-page Prop 8 Report which was released publicly on Tuesday. I have known Dave for years and he agreed to this on the record interview with MadProfessah.com.MadProfessah: What are the main results or ideas you want people to gain from this report?
Dave Fleischer:
* The No on 8 campaign made a smart decision to invest in research. As a result, for the first time ever, in any campaign, the LGBT community has daily tracking polling that measures increases and decreases in our support as voters were being exposed to the anti-gay opposition campaign. This is far superior to episodic polls taken when voters are considering the question out of context and have not recently been exposed to the vile but effective opposition campaign. The No on 8 tracking polling by Lake allows us to correlate voter movement to significant changes in the political environment including but not limited to strategic decisions made by the competing campaigns. That's why this report is the first report ever to seriously evaluate why we struggle to compete in these campaigns. It provides evidence that allows us to consider and evaluate the wide range of competing hypotheses offered by a wide variety of observers. Up until now, we just had the hypotheses, not the data. Now, we have significant data. With the data, we are able to reject some hypotheses, confirm others, and notice areas where we need more information. We are on our way to learning more about the electoral reality in which we are operating.* Based on the data, we know why we lost. We lost because in the final six weeks, when TV ads from both campaigns saturated the airwaves, almost 700,000 votes switched sides and decided to oppose same-sex marriage. It seems fair to me to conclude that Yes on 8 outcampaigned us in the final six weeks. We went from even to losing in the final six weeks. And it's fair to give Yes on 8 credit for what they accomplished, because we lost the most ground by far among the exact group of voters they targeted: parents.* No on 8 regained some of the ground we lost, but only when we directly rebutted the opposition fear-mongering. "O'Connell" was No on 8's belated rebuttal of the pernicious Yes on 8 ads that exploited and stimulated anti-gay prejudice by making people fear that kids were in danger. The effectiveness of the "O'Connell" ad, while limited, suggests that we can successfully rebut the longstanding lies, at least among some voters. And the fact that it improved the situation compared to how we were doing when we were avoiding the issue makes it clear that avoidance serves us poorly. When the opposition attacks the character of LGBT people, we have to rebut immediately, directly, and clearly.* As we prepare to go back to the ballot, we have to commit ourselves to gaining insight into how to rebut those attacks effectively. We still have so much to learn; after all, does "O'Connell" represent the best we can do? We simply don't yet know. We need to try out, in real world circumstances that simulate the campaign, what rebuttals help us most with most of the voters who are susceptible to the opposition fear-mongering. Luckily, we have a great immediate opportunity to enlarge our learning, when we canvass. From my point of view, when we are canvassing, this leads to a practical imperative: we should talk about kids to as many voters as we can; test different messages to see what works; and consider the canvass an investment in qualitative research, the largest, longest focus group in social science history. My concern is that if we don't do this -- if we don't talk about kids now, when the stakes are low -- we will be tempted once again to avoid the issue in an campaign, when the stakes are so high. Then history will repeat itself, to our detriment.MP: How long did the report take to research and write and who paid for it?
DF: 18 months. Paid for by the LGBT Mentoring Project. No money solicited from nor did any come from CA individuals or organizations or the No on 8 campaign on anyone evaluated in the report.
MP: When do you think we should return to the ballot to overturn Proposition 8?
DF: We should return to the ballot when we have a decent chance to win. So we have homework to do. Should only choose the year when we have finished the homework. That could be 2012, or a different year. To me, what's relevant is: have we done our homework?
MP: One of the key findings is in wrong-way voting. Apparently there were 6% of voters who voted No who opposed marriage equality as opposed to 4% of Yes voters who supported marriage equality. Thus there's a net gain of 2 percentage points for the No side. Can you explain how confident you are of this result?
DF: Very confident. The Lake polling data and our methodology to interpret it are all laid in out detail in the report in a special appendix. [Appendix K]We acknowledge all of the limitations of the data. But here's what we calculate:* approx 1.525 million people were wrong-way voters* of those, 875,000 voted No and opposed same-sex marriage* and 650,000 voted Yes though they favored same-sex marriage* the difference, 225,000 voters, made the margin closer by approx. 450,000 votesFYI, David Binder's polling during the No on 8 campaign, commissioned by the No on 8 campaign, corroborated Lake. In the one poll where he asked questions you could use to gauge wrong-way voting, conducted Sept. 2-4, he found that* 13% of the voters who found same-sex marriage acceptable said they'd vote Yes, and* 19% of the voters who found same-sex marriage unacceptable said they'd vote No.This is a less reliable measure of wrong-way voting than because a) it was further in advance of election day, and some voters self-correct; and b) Binder's question gave three options to respondents, so the middle group is sizeable and there's no way to tell if any of them were likely to wrong-way vote. But Binder's finding here is consistent with the idea that our side was the likely net beneficiary of wrong-way voting.And of course Binder's May 2009 attempt to gauge wrong-way voting is very unlikely to be of any value. Polls are best at detecting wrong-way voting as or before people vote, not afterwards, especially not six months afterwards, when accurate recollection of their confusion is unlikely.You will also enjoy looking at Lewis & Gossett, cited in the Prop 8 Report. Their excellent paper analyzing the Field and PPIC data uses regression analysis to compare the plausibility of four competing hypotheses to explain the failure of the two polls to gauge what was happening. They make a compelling case for wrong-way voting as the most probable explanation.
MP: What do you say to people that your source of daily tracking poll data by Celinda Lake ends 5 days before the election and the election could have been decided in that time frame?
DF: The Lake data is the best data we have on Prop 8, and the best data set our community has ever had on any of these ballot measures. That said, it is imperfect in a variety of ways, including the one you mention. There could have been significant changes in voter opinion in those final days. The Lake data would of necessity not reveal that. However, to the extent that the Binder tracking polling data in the final days tell us anything, they do not suggest massive voter movement or anything other than trivial voter movement. See the charts in the report with Binder data and Lake data side by side and you'll see what I mean. Binder tracked until election day (but he didn't start until much much later than Lake, when most of the big movement had long occurred).
Thanks, Dave!
Federal Prop 8 Decision TOMORROW!
The American Foundation for Equal Rights has announced that the decision in the federal challenge to California's Proposition 8, Perry v. Schwarzenegger will be released tomorrow, Wednesday August 4th (Barack Obama's 49th birthday!)Federal district court judge Vaughn Walker is widely expected to strike down Proposition 8, but his reasoning and the extent of his ruling should be very interesting. Ted Olson and David Boies were the attorneys for the plaintiffs.
UPDATE TUESDAY 08/03/2010 6:41PM
The decision will be released electronically on the federal court's website between 1pm and 3pm on Wednesday August 4th.
Subscribe to:
Posts (Atom)
