Several conservatives (including James Taranto, Eugene Volokh, and The Corner's Roger Clegg) have cited this op/ed by Yale Law professor Bruce Ackerman criticizing the Ninth Circuit's ruling in the recall election case. It's true that as a staunch liberal, Ackerman's criticism of the opinion carries some nonpartisan weight, and that's what these commenters have noticed. (Eugene's post does distinguish between different elements of Ackerman's piece.) But Ackerman's arguments against the decision are nonetheless flawed, because they illustrate the same problem the decision itself does: policy-making in the guise of jurisprudence. Ackerman argues that the decision is bad because, inter alia:
- It "disrupts the core First Amendment freedom to present a coherent political message to voters" because campaigns planned their strategy around a short campaign.
- It "disrupts the First Amendment interests of the millions of Californians who have participated in the recall effort," because California issues may be "swamped by national politics" of a presidential primary.
This ruling was wrong because there's no legal basis for it; as I noted yesterday, equal protection simply isn't implicated by using punch cards -- and even if it were, there's no good reason to believe the remedy proposed by the Ninth Circuit would actually improve the situation.
But there's no first amendment right to have an election scheduled at a time when your campaign is "designed to reach a cliimax," and then there's no first amendment right to have a separate election so that more people will pay attention to your issues than to other issues. Californians do have a right to the latter, but it's a legal right, established by the California legislature as California policy, not a federal constitutional right. Why do legal scholars like Ackerman insist on trying to turn every policy question into a Constitutional matter? That's exactly what the Ninth Circuit did, and that -- not because of Ackerman's arguments -- is why the Ninth Circuit was wrong.