- The Washington Times - Tuesday, September 16, 2003

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 “This would not be the case in an election held in March 2004, when all the obsolete machines will have been totally withdrawn from use.”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.

“This recall has been like a roller coaster. There are more surprises than you can possibly imagine,” the Democratic governor said yesterday after appearing with former President Bill Clinton in Los Angeles. “I’ll continue to make my case to the people that a recall is not good for them.”

The recall election ballot will first ask voters if they want to unseat Mr. Davis and, if so, who should replace him. Mr. Schwarzenegger, Democratic Lt. Gov. Cruz Bustamante and 133 other candidates are on the ballot to replace the governor.

Richard L. Hasen, a law professor at Loyola Law School in Los Angeles, said the basis for yesterday’s ruling was the 2000 Supreme Court ruling that stopped the recount of presidential election ballots in Florida.

“In Bush vs. Gore, the Supreme Court held that certain kinds of vote-counting rules are unconstitutional because they treat some voters better than others,” he said. “In this case, the court applied that precedent and said punch cards, with their higher error rates, could not be used in selective counties in California.

The American Civil Liberties Union argued the case before the appeals court and Daniel P. Tokaji, one of the ACLU’s lawyers, said the case boils down to making sure those voting on punch-card machines have their ballots counted.

“It’s not at all clear which, if any, of the candidates this benefits and whether or not it benefits recall proponents or opponents,” he said. “What is clear is that this benefits the state of California, especially that 40 percent of voters — Republicans, Democrats and independents — who would be voting on defective punch-card machines.”

The 9th Circuit is considered the most liberal federal appeals court in the nation. The Supreme Court overturned more of its decisions than those from any other appeals court last year.

But Mr. Tokaji said the appeals court’s ruling is “bulletproof” since there is statistical evidence in California showing that if used, the punch-card machines would throw out 40,000 ballots.

The panel stayed its own ruling for one week to allow for an appeal, which could be filed either with the Supreme Court or the full 9th Circuit Court of Appeals.

Either option probably would involve a delay, observers said. On the one hand, the 9th Circuit would have to be rounded up for a hearing. The Supreme Court, meanwhile, has no obligation to intervene and Justice Sandra Day O’Connor, who oversees the 9th Circuit and could stay the ruling, is at a judicial conference overseas. The whole court isn’t scheduled to be back in session until October.

The decision also affects the two voter initiatives scheduled for the ballot. One of those, Proposition 54, would impose a race-blind policy on state and local agencies by prohibiting them from asking for information about race or ethnicity.

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