court’s description of the panel’s rationale as “one over which reasonable jurists may differ” can hardly be construed as a ringing endorsement of Bush v. Gore’s precedential value or its application to the issue of variations in voting technology. Shelley II, 344 F.3d at 918. At the very least, the Ninth Circuit’s unanimous decision in Shelley II divested the panel decision of whatever precedential value it otherwise would have had. Undeterred, the majority struggles to accord such value to Shelley I because the rationale adopted by the majority is virtually identical to the one provided by the Shelley I panel — namely, that the plaintiffs’ novel equal protection claims are controlled by Supreme Court precedents that mandate the equal weighting of votes. Compare Maj. Op. at 870-71 (<HOLDING>), with Shelley I, 344 F.3d at 894-95
holding that the erroneous use of an outdated jury instruction on the justifiable use of deadly force requiring the defendant to retreat if possible negated defendants claim of selfdefense and rose to the level of fundamental error holding that the inclusion of the terms use and possess in a state law prohibiting the possession storage use manufacture or sale of fireworks in counties exceeding a certain population do not render the states exercise of police power unduly oppressive or unconstitutional holding that the counties use of outdated technology results in the weighting of votes differently holding that a plaintiff need only show that the results of a polygraph examination were a factor in the termination of employment and rejecting requirement that results be the sole factor for employees discharge holding that in a statutory fee case the results obtained factor was already subsumed in the lodestar and that results multipliers should be awarded only in some cases of exceptional success