- The Washington Times - Tuesday, September 16, 2003

A full federal appeals court yesterday asked for briefs from both sides of the California recall case and will soon decide whether to reconsider a three-judge panel’s decision to postpone the Oct. 7 special election.

Three judges from the 9th U.S. Circuit Court of Appeals ruled Monday that California must delay its recall election until unreliable punch-card voting systems — like those that figured in the disputed 2000 presidential election in Florida — are replaced. That would likely push back the recall to March 2, the date of California’s Democratic primary.

All 25 judges of the 9th Circuit will vote on whether to allow an 11-judge panel to re-examine Monday’s decision.

Jan Baran, an election-law attorney in Washington, said it was “extremely unusual” for the 9th Circuit to decide to rehear the case before the state of California filed its expected appeal.

“It’s extraordinary for another judge to make the motion to review,” Mr. Baran said, adding that it might be an attempt by one judge to “avoid embarrassment” if the case makes it to the U.S. Supreme Court and is overturned.

“The 9th Circuit is sort of the laughing stock of the Supreme Court bar,” Mr. Baran said. “They are notorious for having the most appeals to the Supreme Court and being reversed the most often.”

Because of the 9th Circuit’s unexpected action, California Secretary of State Kevin Shelley yesterday canceled a press conference to discuss the state’s legal options for keeping the recall on schedule.

“I am immediately complying with the order from the 9th Circuit for briefs on whether or not this case should be reheard,” Mr. Shelley said. “I believe it is in everyone’s best interest that this case be heard swiftly and considered thoroughly, so the court can resolve these legal issues with the finality that the voters expect and deserve.”

Meanwhile, the attorney for Ted Costa, the Sacramento man who initiated the recall drive against Gov. Gray Davis, said he “welcomes the invitation to explain to the full court how the [three-judge] panel got it wrong.”

“I think we have early indications that the 9th Circuit is going to fix its own mistake,” said attorney Charles P. Diamond.

Eugene Volokh, visiting professor of law at Harvard University, said a decision from the 9th Circuit should come quickly. “The briefing schedule is extremely tight,” he said. “We may see a hearing some time this week.”

Daniel Lowenstein, law professor at the University of California at Los Angeles, opposes the recall but believes the 9th Circuit made an “extremely reckless decision” to hear the case in the first place because of the chaos it has created for local officials scrambling to conduct the election.

“The panel was extremely irresponsible and no matter what happens, it will inflict great harm to the state of California,” Mr. Lowenstein said. “The least harm comes if the panel’s decision is quickly overturned.”

However, he said, the fact that the court is poised to reconsider the ruling of the three-judge panel is encouraging.

“I think a group of 11 judges is less likely to do something reckless than three judges,” Mr. Lowenstein said. “The fact that there is one judge calling for [the rehearing] is a good sign. There’s at least someone in the circuit who thinks that this ought to be re-evaluated.”

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