- The Washington Times - Tuesday, September 23, 2003

A federal appeals court ruled unanimously yesterday that the California recall election would go on as scheduled Oct. 7, dismissing a decision by a three-judge panel that it be delayed for months.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals rejected the notion advanced by the American Civil Liberties Union that the recall election of Gov. Gray Davis must be delayed until March because some precincts would use the kinds of punch-card ballots that caused confusion in the 2000 presidential election in Florida.

“There is no doubt that the right to vote is fundamental, but a federal court cannot lightly interfere with or enjoin a state election,” the panel wrote in its decision, rendered less than 24 hours after hearing oral arguments.

The ACLU said yesterday it will not appeal the decision to the U.S. Supreme Court, ensuring that the recall will go forward.



“With the election just two weeks away, we do not believe we should prolong the uncertainty any longer,” said Dorothy M. Ehrlich, executive director for the ACLU of Northern California.

The ACLU based its argument on the Supreme Court decision in the Bush v. Gore case, which stopped the recount in Florida because election officials were using different standards to determine legal votes. The 9th Circuit noted in its decision yesterday that the Bush v. Gore decision couldn’t be expanded to apply to how votes were cast during an election.

“In Bush v. Gore, the leading case on disputed elections, the [Supreme Court] specifically noted: ‘The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections,’” the court wrote.

The federal court was sympathetic to the idea that punch-card ballots might be less accurate than newer methods used elsewhere in California, but concluded that “it is merely a speculative possibility” that voters in districts using punch cards would be affected significantly.

It also said it was reluctant to interfere “with an election after voting has begun,” a reference to the estimated 500,000 absentee ballots that were cast for the election and would be thrown out if the recall was delayed.

Attorney Charles P. Diamond, who represented the recall proponents in court Monday, said he was “pleased with the statesmanlike way [the court] handled a very nettlesome controversy” and “brought it to a dignified end.”

Mr. Diamond added that he was not surprised that the ACLU decided to end its appeals.

“This was 11-zip,” Mr. Diamond said. “There was simply no way the Supreme Court was going to take this and walk right into the political thicket in which they got so stung in 2000.”

The court’s reversal of the more liberal three-judge panel is the latest twist as the recall heads into its final fortnight. Arnold Schwarzenegger, the leading Republican in the race, will participate in his only debate of the campaign tonight — an event that promises to be well-watched across the state.

Mr. Schwarzenegger can expect to be the main target of other leading candidates — Republican state Sen. Tom McClintock, independent columnist Arianna Huffington, Green Party candidate Peter M. Camejo and Democratic Lt. Gov. Cruz M. Bustamante.

Meanwhile, Rep. Darrell Issa, a California Republican who spent $1.6 million of his own money to start the recall process, suggested on CNN’s “Inside Politics” yesterday that Mr. McClintock should “do the math” and bow out.

“I talked to Tom McClintock before he got into this race,” Mr. Issa said. “He told me a couple of things that I’m going to hold him to. One, he said he wouldn’t get in if it was a crowded field. Two, he said he wouldn’t be a spoiler. And three, he said he could do the math.”

A statewide poll by the Public Policy Institute of California released Sunday found that 28 percent of voters supported Mr. Bustamante, the only prominent Democrat in the race. Mr. Schwarzenegger got the support of 26 percent of likely voters and Mr. McClintock garnered 14 percent.

McClintock spokesman John Stoos brushed aside Mr. Issa’s comments, pledging that “we’re simply not stepping aside.”

“We are in this until October 7 and we plan to be in the winner’s circle,” Mr. Stoos said, stressing that polls taken in the last several weeks showed that Mr. McClintock’s campaign had gained momentum while “Mr. Schwarzenegger has stalled.”

Stephen Dinan contributed to this report.

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