California told to postpone recall

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A federal appeals court ruled yesterday that California must delay its recall election until several major counties upgrade their voting machines. An appeal is expected and the major candidates said they would continue to campaign as if the election were still on.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco said holding the election as scheduled Oct. 7 would result in a "hurried, constitutionally infirm election." The panel did not set a new date, but suggested the election be held in March, when the Democratic primary election is scheduled.

By then, the judges said, the six counties will have replaced obsolete punch-card voting machines. Without that, voters in those counties would be disenfranchised compared with voters in counties with better voting systems, which would violate the equal protection clause of the Constitution.

"The margin of victory could well be less than the margin of error in the use of punch-card technology," the judges said in their unanimous opinion. "This would not be the case in an election held in March 2004, when all the obsolete machines will have been totally withdrawn from use."

The decision overturns a federal district court decision and comes after other courts, including the California Supreme Court, ruled that the recall could go forward.

Either Secretary of State Kevin Shelley, who is responsible for California's elections and the defendant in the suit, or Ted Costa, the activist who led the recall drive, can appeal. Mr. Shelley said he had not made a decision, but Mr. Costa said he will file an appeal himself.

For now, though, the major candidates said they would continue to campaign as if the election were still Oct. 7.

"One million, six hundred thousand Californians of all political persuasions have signed petitions to recall Governor Gray Davis," said Arnold Schwarzenegger, the leading Republican candidate. "The secretary of state has certified that this election should go forth on Oct. 7. The California Supreme Court has also ruled that the election should go forward on Oct. 7. I fully expect that the federal courts will come to the same conclusion."

The delay played into Mr. Davis' argument that the entire recall was giving California a bad name.