Was the Ninth Circuits Chosen Remedy Truly Justified by the Law?
And yet the Ninth Circuit opinion never really addresses why its remedy was justified to avoid a constitutional violation that in all likelihood was going to be what we call in the law “harmless error.” Indeed, imagine that Secretary of State Kevin Shelley had told the Ninth Circuit that he would like to run the election as planned, so as to not waste the money already spent, and that he would stipulate that he would not object to any after-the-fact remedy should the election turn out to be an extremely close one and should the punch card machines be proven to have caused an undercount that could have affected the outcome. If the Ninth Circuit is acting completely honestly, such a concession should cure its concerns. Now perhaps the Ninth Circuit panel thinks that that we should simply not run any risk of a disenfranchisement that might affect the outcome of the election, because moving the election back from October to March simply doesn’t cost society very much at all. This is where
