- The Washington Times - Sunday, September 14, 2003

The fate of the California recall election is in the hands of what is considered the most liberal and controversial federal court in the United States, leaving experts to wonder if the already chaotic election will be postponed, adding to the confusion.

The 9th Circuit Court of Appeals, which last year declared the words “under God” in the Pledge of Allegiance unconstitutional and recently overturned more than 100 death penalty cases, seemed sympathetic Thursday to the lawsuit brought by the American Civil Liberties Union to delay the recall. A decision is expected this week.

“I think what [the 9th Circuit] is threatening to do is disastrous,” said UCLA law professor Dan Lowenstein.

The ACLU argued that punch-card ballots, like those used in Florida in the contested 2000 presidential election, are prone to unacceptable margins of error and could disenfranchise up to 44,000 voters.

“At least two of the judges took very seriously the equal protection arguments made by the plaintiffs,” said Richard L. Hasen, a law professor at Loyola University Law School in Los Angeles who filed a “friend of the court” brief in support of the ACLU.

Punch card ballots are used in precincts that contain 44 percent of the state’s population, including San Diego and Los Angeles, a factor that Mr. Hasen thinks could be important.

“Judge [Harry] Pregerson, who lives in Los Angeles County made many comments along those lines,” Mr. Hasen said.

In Thursday’s hearing, California Deputy Attorney General Douglas J. Woods admitted that the punch-card ballots were “obsolete, antiquated and unacceptable,” and noted that they are scheduled to be replaced in March.

But Mr. Woods argued that the state constitution stipulates that the election must be held on Oct. 7, despite the fact that less than ideal voting methods might be used. Judge Pregerson did not appear swayed.

“So we have to accept the unacceptable, is that what you’re saying?” asked Judge Pregerson.

The state will appeal the decision to either the entire 9th Circuit or the U.S. Supreme Court if the three-judge panel rules to delay the recall election until May when new voting machines could be installed.

Regardless of the decision, Mr. Lowenstein, an expert in election law, said the 9th Circuit Court has already thrown the recall into further turmoil by agreeing to hear the case.

“The campaigns are spending lots of money, time and hiring staff. What are they supposed to do?” Mr. Lowenstein said. “Should they spend their money now, or figure the election is being put off? It’s terribly disruptive and extremely irresponsible if they intervene in the election at this time.

“There’s a reason why the state constitution sets a short time period for the election. It’s very destabilizing to have the government under this kind of uncertainty,” he said.

The three judges from the 9th Circuit who heard the case were all appointed by Democratic presidents — Judge Pregerson by President Carter and judges Sidney Thomas and Richard A. Paez by President Clinton — and are considered among the most liberal on the court.

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