Appeals Court Orders Delay of Recall

A federal appeals court Monday unanimously ordered the Oct. 7 recall election postponed, ruling that if it proceeded on schedule, voters would face an unacceptable risk of errors caused by antiquated punch-card voting machines.

The decision almost certainly will be litigated further. The three-judge panel of the U.S. 9th Circuit Court of Appeals that issued it gave lawyers for the state seven days to appeal.

But even with the outcome unresolved, the decision created new dilemmas for candidates, new legal questions for election lawyers and new headaches for the state’s beleaguered voting officials. It came three weeks before the election, at a time when millions of dollars already had been spent, and thousands of absentee votes cast.

“It’s just more uncertainty. It’s more circus,” said U.S. Sen. Dianne Feinstein (D-Calif.).

The six counties that use punch-card machines, including Los Angeles and San Diego, already were scheduled to replace them in time for the March 2 primary, which would become the likely date of the recall election if Monday’s decision stands.

The case could quickly land at the U.S. Supreme Court. If it does, it would be the first major test of Bush vs. Gore, the decision that stopped the recount of Florida’s votes in the 2000 presidential election. The appeals court judges who issued Monday’s decision based it primarily on that high court precedent.

Gov. Gray Davis and each of the major candidates to replace him pledged to continue campaigning until a final ruling. The major campaigns said that they would continue their television advertising as scheduled.

But with uncertainty over the election date, candidates who built their plans around a six-week campaign now must consider the possibility of one lasting six months.

“It makes it so difficult to wage a campaign,” said UC Regent Ward Connerly, the author of Proposition 54, which is also scheduled to be voted on next month. “If this thing is put off, that’s 30,000 bucks down the drain,” he said, noting that the campaign committee for the proposition had just started airing its first television commercial. “We need certainty.”

Californians who already have voted -- more than 100,000 statewide, including 30,000 in Los Angeles County -- were left uncertain whether they would get a chance to vote again if the election were postponed. Secretary of State Kevin Shelley issued a statement saying that voters who planned to cast absentee ballots should still do so.

State lawyers face questions on whether a postponement would mean reopening the ballot to allow candidates to remove their names or new candidates to join the race. State law generally requires that the ballot be set within 59 days of the election.

And voting officials, already struggling to produce an election on a short deadline, were handed a new problem to consider: whether combining the lengthy recall ballot with the primary in March would produce a behemoth too large for the newer voting machines to handle.

“It’s more than a wrinkle,” said Los Angeles County Registrar-Recorder Conny McCormack. “No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no.”

Although Davis sought to maintain a studied neutrality in his public statements, he smiled broadly and appeared upbeat as he discussed the court action with reporters.

The governor took pains to point out that he was not involved in the suit, and that he supported the “right” of those who signed the petitions to have the election.

“I would like a result, however, that allows as many Californians as possible to vote,” Davis said.

“I do think the prospect of a small voter turnout overruling 8 million people is not good for democracy,” he said, referring to the number of people who voted last November. “It violates the sanctity of the electoral process.”

Republicans, by contrast, denounced the ruling -- and the three judges, all appointed by Democratic presidents, who produced it.

Rep. Darrell Issa (R-Vista), who bankrolled the drive to put the recall on the ballot, called the ruling a “judicial hijacking.”

State Sen. Tom McClintock (R-Thousand Oaks) called the 9th Circuit the nation’s “most reversed court -- the same court that banned the words, ‘Under God’ in the Pledge of Allegiance,” a reference to a decision last year by a different 9th Circuit panel. “This election is called for by the Constitution and demanded by the people of California,” he said.

“Historically, the courts have upheld the rights of voters, and I expect that the court will do so again in this case,” said Arnold Schwarzenegger, the other prominent Republican in the race. “The people have spoken, and their word should -- and will -- prevail.”

Lawyers for the state had asked the judges to keep the election on schedule. They admitted that punch-card machines were unreliable -- former Secretary of State Bill Jones, a Republican, ruled on that two years ago when he ordered counties to phase out the machines by the end of this year.

But, the lawyers said, the state Constitution sets the schedule for when a recall should be voted on, and the courts should not interfere. Moreover, they argued, election officials could minimize the errors caused by the voting machines by educating voters.

The judges -- Richard A. Paez, Harry Pregerson and Sidney R. Thomas -- acknowledged that postponing the election for several months undoubtedly would be a burden and an expense for the state and the candidates.

But, they said, the hardship would be greater for voters whose ballots were not counted because of flaws in the voting machines. The six counties that were scheduled to use punch-card machines in this election included 44% of the electorate in the last election.

Expert testimony in the case indicated that some 40,000 voters would have their ballots invalidated because of punch-card errors, the judges said.

“The state has an interest in holding a fair election -- one trusted by the candidates and the voters to yield an accurate and unbiased result,” the 9th Circuit judges wrote in their joint opinion.

With the high error rate predicted for the punch-card machines, “The margin of victory could well be less than the margin of error in the use of punch-card technology,” the judges said.

Expert testimony in the case indicated that the punch-card machines were 2 1/2 times more prone to errors than newer machines used in the state’s 52 other counties.

As a result, the judges said, voters in those counties would have a greater chance of having their ballots counted than voters in the counties using punch cards.

That, they said, violated the principles laid down by the U.S. Supreme Court when it stopped the Florida recount. In that case, the high court ruled that a recount would be unconstitutional partly because it would work differently in each county.

“No voting system is foolproof, and the Constitution does not demand the use of the best available technology,” the judges said. “However, what the Constitution does require is equal treatment of votes cast.”

California officials, as the losing party, can either ask the U.S. Supreme Court to take the case directly or go back to the 9th Circuit to ask that a larger panel of 11 judges reconsider the ruling.

The Supreme Court, which would not normally come back into session until Oct. 6, does not have to consider the case, nor does the 9th Circuit have to grant a rehearing.

Secretary of State Shelley said he would not decide which path to follow until today.

But Charles P. Diamond, an attorney for Ted Costa, the Sacramento man who launched the recall and was granted a formal role in the litigation, said he planned to go directly to the Supreme Court.

The 21 days left before Oct. 7 do not allow enough time for a rehearing by the 9th Circuit followed by an appeal to the Supreme Court, Diamond said.

He said lawyers from his firm, O’Melveny & Myers, would file papers with Supreme Court Justice Sandra Day O’Connor “within 48 hours” asking her to extend the seven-day stay issued by the 9th Circuit and asking the full court to review the case.

Legal scholars were divided in their reaction to the ruling. Some praised it as a logical application of the Supreme Court’s ruling in Bush vs. Gore, while others said that the earlier decision could be interpreted in another way which could provide grounds for an appeal. Still others said the decision was flatly wrong.

Mark D. Rosenbaum, the lead lawyer for the ACLU, called the opinion “a masterpiece” that “ratifies the most basic principle of the Constitution -- that this is a government of, by and for the people.”

Harvard Law professor Laurence H. Tribe, who helped write the plaintiffs’ brief, also praised the ruling and predicted that the Supreme Court would be reluctant to overturn it.

“I don’t think the judges who were in the majority in Bush vs. Gore want to vindicate the views of those who said that the court was merely engaged in a partisan exercise in that case,” Tribe said.

By contrast to the Florida case, the current issue was “much more dramatic,” he said, noting that state officials already have admitted that punch-card machines are not reliable.

“In this case, there is a simple way to eliminate the differences” -- by waiting for the newer, more accurate machines to be put into use, Tribe said.

But Vikram D. Amar, a constitutional law professor at Hastings College of the Law in San Francisco, said he thought the 9th Circuit had applied the Supreme Court’s precedent in a logical fashion “but in a way the Supreme Court probably wouldn’t agree with.”

This case centered solely on defective machines. In the Florida case, the justices said a recount would involve both differing rules in the state’s counties and individuals making judgment calls on disputed ballots. “This is not exactly like Bush vs. Gore,” Amar said.

UCLA law professor Daniel H. Lowenstein condemned the ruling as “extremely irresponsible,” and said it would be harmful whether it is upheld or not. Even if the ruling is overturned, it already has “thrown an enormous monkey wrench” into the election, Lowenstein said.

Monday’s ruling overturned a decision last month by U.S. District Judge Stephen V. Wilson in Los Angeles.

Wilson, who was appointed by Ronald Reagan, refused to block the election, saying doing so would frustrate the will of the electorate.

But the appeals court judges disagreed. “This is a classic voting rights equal protection claim,” the judges said.

The groups that brought the case to the court, the Southwestern Voter Registration Education Project, Southern Christian Leadership Conference and NAACP, all represented by the ACLU, present “almost precisely the same issue as the [Supreme] court considered” in the presidential election case, the judges said: “whether unequal methods of counting votes among counties constitutes a violation of the equal protection clause.”

The answer to that question, they said, is definitely yes.

Punch-card machines were first used for voting in California and other states in 1964, the judges noted, and serious problems with their accuracy were reported as early as the mid-1970s.

Use of the machines continued, however, in part because more accurate technology was not widely available until recently, and in part because state and county officials in California and elsewhere were reluctant to spend money on new voting machines until the Florida election debacle.

In 2001, the ACLU went to federal court in Los Angeles to have the punch-card machines decertified as obsolete and error-prone.

Jones settled the suit in May of that year by signing a consent decree mandating that all California counties phase out the machines.

Punch-card machines “are old technology, and their use today can be seen as analogous to the use of typewriters -- they worked well for many years but are now obsolete,” Jones said at the time.

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Next in the recall litigation

Secretary of State Kevin Shelley plans to announce today whether he will ask the full 9th Circuit Court of Appeals to order a rehearing of the case or whether he will ask the U.S. Supreme Court to review it. As an elected state officer, Shelley can make that decision without consulting other officials.

If he asks for a rehearing, the appeals court will poll its 26 sitting judges. If more than half the judges agree to a rehearing, the case will be considered by an 11-judge panel.

If the 9th Circuit rehears the case, the losing side could seek review from the Supreme Court.

In that case, or if Shelley chooses to go directly to the Supreme Court, the justices would meet to consider whether to hear the case. The votes of four justices are needed to take a case. The court normally does not hear cases until the first Monday in October -- the day before the scheduled election -- but they can hear cases earlier in emergencies.

Los Angeles Times

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Voices

‘This recall has been like a roller coaster. There are more surprises than you can possibly imagine. I’ll continue to make my case to the people that a recall is not good for them.’

Gov. Gray Davis, after appearing with former President Clinton at a school dedication in Compton

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‘I want to remind people that the 9th Circuit is the most reversed court -- the same court that banned the words, ‘Under God’ in the Pledge of Allegiance. This election is called for by

the Constitution and demanded by the people of California.’

State Sen. Tom McClintock,

recall candidate

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‘The 9th Circuit Court

of Appeals has rarely missed the opportunity

to impose its extremist, liberal views on millions of Californians, and today’s ruling is appalling.’

Dave Cox, Republican

Assembly leader

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‘[The decision] ratifies the most basic principle of the Constitution -- that this is a government of, by and for the people.’

Mark D. Rosenbaum, the lead lawyer for the American Civil Liberties Union, which brought

the case

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‘It gives him more time to repair his relations with the electorate. It gives more time for the perceived flaws of his opponents to emerge.’

Kevin Spillane, a GOP strategist

in Sacramento, saying the court decision helps Davis

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‘It’s more than a wrinkle. No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no.’

Conny McCormack, Los Angeles County registrar-recorder

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‘Voters are going to be confused no matter what happens now. They’re going to see on the news tonight that the election has been postponed, and if the Supreme Court decides next week to overturn the decision, then they’ll hear that

it’s back on. It’s very confusing.’

Bradley Clark, Alameda County’s registrar of voters

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‘It simply adds to voter frustration.... We’ve seen time and again when it comes to initiatives that when Californians have doubts about something, they tend to vote no.’

Sherry Bebitch Jeffe, political scholar at USC