Federal Judiciary

Rodriguez v. Newsom (9th Cir. - Sept. 8, 2020)

By Shaun Martin

I'm happy for lawyers to do pro bono work.  Thrilled, even.  Cranking out well-written briefs for non-paying clients is good for the soul (even if not the pocketbook).

So the fact that there are 30-plus lawyers listed on the caption as representing the plaintiffs in this public interest suit doesn't bother me.  Good for them trying to make the world better.

Yet, if it were me, I would not spend my time -- as David Boies and eight or so of his colleagues at Boies Schiller do here -- litigating a lawsuit that says that California should not be permitted to award all of its electoral votes (in a "winner take all" fashion) to whichever presidential candidate obtains the most votes in California in the 2020 election.

Call me crazy, but I might be able to find other uses of my time that I might find more socially beneficial.  Made even more so by the fact that there's an on-point Supreme Court case that holds that "winner-take-all" regimes in presidential elections are perfectly permissible.  Which -- not coincidentally -- is partly why that's precisely what every single state but two in fact do.

I don't doubt that Boies and his colleagues wrote a great brief.  And it might well be the case that federal presidential elections would be better off (fairer, etc.) if every state allocated its electoral votes proportionally to each candidate -- or, better yet, that we just got rid of the electoral college entirely and elected the person with the most votes as president.  I could be down for that.

But filing a lawsuit that in 2018 that says that California should ditch its winner-take-all rules isn't my particular cup of tea.  If only because it ain't gonna work.

That's, again, not to detract from the effort.  Kudos for working on a nonpaying matter rather than just cranking out higher bills on paying work.  I'm sure the associates much preferred working on this brief than, say, doing a document production or answering interrogatories in an insurance coverage dispute.  (Partners too, I suspect.)

But, on this one, you're Sisyphys, not Zeus.

P.S. - Amongst the lawyers that the Ninth Circuit lists on the caption as representing the plaintiffs are three lawyers for "Munger Golles & Olson LLP" (spelled that way not once, but twice, for two different Munger offices).  Call me crazy, but I'm pretty sure that's a typo, and not the way that firm was listed in the actual briefs.  (Otherwise, someone's getting fired.)

Full post as published by California Appellate Report on September 09, 2020 (boomark / email).