- The Washington Times - Monday, September 22, 2003

A federal appeals court yesterday pressed opponents of the California recall election to prove that the U.S. Supreme Court’s Bush v. Gore decision in the 2000 presidential election warrants postponing the Oct. 7 vote.

Harvard University law professor Laurence Tribe, who represented then Vice President Al Gore in the landmark high-court case, argued that punch-card ballots in Los Angeles County aren’t “up to snuff” and should be replaced before an election.

Mr. Tribe, representing the antirecall American Civil Liberties Union (ACLU), was interrupted several times by the judges as he pressed his case.

“We don’t have a Bush v. Gore problem,” said Judge Alex Kozinski, adding that he hasn’t seen evidence that punch-card ballots, like those used in the 2000 presidential election in Florida, are significantly less reliable than other voting methods.

Judge M. Margaret McKeown asked Mr. Tribe whether he was suggesting that elections are only constitutionally permissible when the latest technology is being used.

Mr. Tribe replied that the court should stop the recall until a system could be put in place that is not “so inherent with errors.”

Judge Andrew J. Kleinfeld said he thought the U.S. Supreme Court “expressly limited the application of Bush v. Gore” to establishing a consistent standard for a postelection recount, not the casting of ballots.

Judge Kozinski said California’s secretary of state planned to replace the punch-card machines by the presidential primary in March.

Deputy Attorney General Douglas Woods, arguing for holding the recall Oct. 7, said the ACLU’s case for delaying the election is based “on untested speculation.”

Charles P. Diamond, an attorney for pro-recall organizer Ted Costa, told the court that the “constitutional sands are moving under our feet as Mr. Tribe was speaking.”

Judge Kozinski asked Mr. Diamond what percentage of ballots would have to be spoiled for him to be concerned that the right for a fair election was violated.

“Five in 10? Nine in 10?” Judge Kozinski asked. “We’re not arguing about principle anymore, we’re just talking numbers.”

“That’s not what this case is about,” said Mr. Diamond, citing a report that pegged the error rate of the punch-card ballots at just above 1 percent. “You don’t prevent everyone from voting because some might not have their votes counted as well.”

Judge Kleinfeld questioned whether postponing the recall would do more harm than good because it would disenfranchise the “hundreds of thousands” of voters who had cast absentee ballots. Those votes would be thrown out.

“Not at all. They can vote again in March,” said ACLU attorney Mark Rosenbaum, who argued that 4 percent of the votes of black and Hispanic voters in Los Angeles would be “uncounted” because of faulty punch-card machines.

Judge McKeown asked Mr. Rosenbaum “what would be the practical effect of a split decision,” suggesting that the court is considering allowing the gubernatorial recall to proceed on Oct. 7 and deferring several ballot initiatives until the presidential primary.

A three-judge panel of the 9th Circuit agreed last week with the ACLU that the recall election should be postponed. The 11-judge panel is expected to rule in the next few days whether to uphold or overturn that ruling. The case eventually might be appealed to the U.S. Supreme Court.

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