This is a continuation of the challenge to Arizona's requirement that voters prove that they're a citizen (by presenting identification) before they're allowed to vote.
There were a lot of proceedings immediately prior to the November 2006 election; e.g., the district court's denial of a preliminary injunction, reversal by the Ninth Circuit, reversal again by the Supreme Court. The Ninth Circuit basically continues the lawsuit yet again by saying that the record should be developed further and that this process can effectively be done in time for the 2008 elections, and on that basis basically says that it doesn't matter whether the court grants or denies the preliminary injunction at this point, since a full record can be developed to decide whether to grant a final injunction.
I hated the first nine pages of the opinion, which was how long it took to print the caption. I thought that the next six pages were pretty reasonable, in which Chief Judge Schroeder basically articulated the "not deciding might be the best approach" argument and suggested that that's basically what she was doing.
And then I disliked the next four pages, which basically decided -- or at least put a definite spin on -- the issues at hand even though the opinion continued to insist that it wasn't really deciding them. Sure, you've allegedly got to decide the propriety of the denial of the injunction. But if you really want to do that without advancing one side or the other of the merits, you don't do what Chief Judge Schroeder does here. Sure, she leaves some real wiggle room on remand, and the development of a more replete record. But she's doing more than simply letting the case go forward without an adjudication of the merits. Much more.
Finally, I couldn't help thinking, as I read the case, about those famous words by Rush lyricist Neal Pert. Or, as might better be recalled by the more literate amongst us, the argument that "You can't be a neutral on a moving train." Which goes to the heart of the effort to be purportedly indecisive in the first place.
An interesting resolution.
