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Wednesday, September 17, 2003

NEXT FROM THE NINTH CIRCUIT: YOUR CONSTITUTIONAL RIGHT TO PARADE AT NOON ON SATURDAY 

Harvard law professor Einer Elhauge makes several good points in his piece in Wednesday's Wall Street Journal criticizing the Ninth Circuit's California recall decision, but I was particularly struck by this clever analogy:
Precisely the same distinction [between standardless discretion in ballot-counting, which Bush v. Gore struck down, and county-to-county differences in ballot-counting technology, which the Ninth Circuit lamely extends Bush v. Gore to cover] is recognized for the conventional constitutional doctrine that bans counties from exercising standardless discretion about whether to grant parade permits because of the fear that it might be exercised against disfavored political viewpoints. No one had ever thought this makes it unconstitutional for one county to allow parades from 1 p.m. to 5 p.m. on Saturday, while other counties allow them from 9 a.m. to 5 p.m.
The whole thing is worth a read (subscription only, unfortunately).

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