My column today is about the terrible decision by a divided panel of the Ninth Circuit federal appeals court to invalidate Arizona’s voter eligibility law. With Justice Sandra Day O’Connor sitting on the case and casting the deciding vote, the court ruled that Arizona could not require proof of citizenship and identification because a federal statute (which does not impose those requirements) has supposedly preempted the field. You should see Ed Whelan’s series of posts at Bench Memos regarding questions about whether Justice O’Connor should still be deciding cases. My purpose in this post is to thank Ed for bringing an error to my attention.

It is customary in important cases that produce divided panels for the losing side to seek en banc review (i.e., reconsideration by the entire appellate court, not just a three-judge panel) before asking the Supreme Court to take the case. But, as I explain in the column, this is impractical in the much too large Ninth Circuit, which has 29 active judges (about twice the size of most other federal appeals courts). So the Ninth has a process called “partial en banc,” in which eleven members of the court’s bench hear and decide the case.

In the column, I point out that this would eliminate Justice O’Connor from further participation. I also said it might sideline the two other members of the panel, Judge Sandra Segal Ikuta, who wrote the majority opinion joined by Justice O’Connor, and Chief Judge Alex Kozinski, who dissented. I was right about Judge Ikuta but wrong about Judge Kozinski.

Ed points me to Ninth Circuit Rule 35-3, which sets out the procedure for partial en banc review. The rule provides that the 11-judge panel is to be made up of the chief judge plus another 10 judges selected at random. So, Chief Judge Kozinski would participate in an en banc review. Whether Judge Ikuta would depends on the luck of the draw. Would her non-participation portend a reversal by the larger panel? I wouldn’t bet the ranch … this is the Ninth Circuit we’re talking about.

My thanks to Ed for the clarification.