- The Washington Times - Wednesday, September 17, 2003

A three-judge panel of the 9th Circuit Court of Appeals relied heavily on the landmark Supreme Court case that settled the disputed 2000 presidential election to delay the California recall, a link legal experts called tenuous at best and a direct challenge to the high court at worst.

“The way I read the [9th Circuit panels] decision, it was almost a taunting of the Supreme Court decision in Bush v. Gore,” said Jan Baran, a Washington-based election law expert. “They seem to be daring the Supreme Court to take the case.”

For now, however, the case is still in the hands of the 9th Circuit, which late yesterday afternoon received briefs from each side of the recall battle. The whole 25-member court will vote — perhaps before the end of the week — on whether an 11-member “en banc” panel will reconsider the unanimous decision by three judges to delay the recall.

On Monday, the three-judge panel took the side of the American Civil Liberties Union and delayed the Oct. 7 election because it held that the 44 percent of California voters who use less-reliable punch-card voting systems will be “disenfranchised,” just as those who cast spoiled ballots in Florida in 2000.

Richard L. Hasen, a professor at Loyola Law School in Los Angeles, filed a “friend of the court” brief to the 9th Circuit yesterday in support of delaying the recall. In his opinion, “If Bush v. Gore has any precedential value, it must apply” to this case.

“This court must take seriously the Bush Court’s admonition not to allow the state to value one person’s vote over that of another through the use of non-uniform standards, particularly where, as here, the state itself has conceded that the non-uniform standards are unacceptable,” Mr. Hasen wrote.

One of the main legal arguments of the recall opponents is that the state has conceded that the punch-card machines used in many localities are outdated. The state had planned on replacing the machines before the March 2 California presidential and state primary, but hadn’t done so when the special recall election was set for next month.

Attorney Charles P. Diamond, who is representing Ted Costa, the recall’s main legal advocate, told the court yesterday that the three-judge panel based its decision on “a clearly erroneous reading” of Bush v. Gore “that all nine [Supreme Court] justices rejected.”

“Bush v. Gore did not address whether Florida’s use of punch-card voting systems violated the equal protection clause, but only the constitutionality of the Florida Supreme Court’s recount procedures for punch-card ballots,” Mr. Diamond wrote, noting that the high court stressed how their decision was “limited to the present circumstances” in Florida in 2000.

“In Bush v. Gore, however, all nine justices of the Supreme Court found no constitutional problem with the use of punch-cards in some but not all Florida counties,” Mr. Diamond’s brief said.

According to the Federal Election Commission, 22.6 percent of registered voters nationwide in the 2002 elections used punch-card ballots.

In its brief to the court, the ACLU yesterday urged the 9th Circuit to allow the panel’s decision to stand.

“The panel did a remarkable job, with remarkable speed, and it got the law right,” the ACLU said.

The civil rights group said it would violate the Constitution to permit “this flawed special election to go forward.”

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