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Court puts Calif. recall on hold

In a ruling based largely on Bush vs. Gore, an appeals court says outdated punch cards are too prone to errors.

Compiled from Times wires
Published September 16, 2003

LOS ANGELES - With just three weeks to go, a federal appeals court on Monday postponed California's historic recall election, ruling that the use of older punch card ballot machines could lead to some votes not being counted.

The decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals, which often cited the U.S. Supreme Court's decision in Bush vs. Gore, is certain to be appealed.

The court did not set a new date for the Oct. 7 election, but proponents of the delay want the election pushed back to March 2, the presidential primary in California, when the punch card machines will no longer be in use.

The ruling sided unanimously with the American Civil Liberties Union that the use of punch cards in six counties would subject four of 10 California voters to a greater likelihood that their ballots would be misread or discarded - as happened during Florida's election fiasco in 2000.

The six counties include the state's most populous, Los Angeles, as well as Sacramento and San Diego counties. Altogether they contained 44 percent of California's 15.7-million registered voters in 2000.

"It is virtually undisputed that . . . punch card voting systems are significantly more prone to errors that result in a voter's ballot not being counted than the other voting systems used in California," the judges wrote.

The 9th Circuit is the nation's largest and most liberal federal appeals court. It was the 9th Circuit last year that declared the reciting of the Pledge of Allegiance in public schools unconstitutional because of the words "under God."

The ruling Monday was condemned by Republicans as a partisan ploy by Democrats, who it is generally assumed would benefit from a March election because of higher voter turnout in a presidential election year and fading memories of Gov. Gray Davis' missteps. Several other legal attempts to delay the election by those sympathetic to Davis had failed.

Especially vexing to Republicans is that the three judges who ruled on Monday's case were appointed by Democratic presidents - Judge Harry Pregerson by President Jimmy Carter and Judges Sidney Thomas and Richard A. Paez by President Bill Clinton.

One of the recall's biggest financial backers, Rep. Darrell Issa, a Republican from San Diego, called Monday's decision a "judicial hijacking of the electoral process."

Officials from a prorecall group backed by Issa said they would request an emergency stay of the ruling from the U.S. Supreme Court, though the court is not in session and it was unclear if or when the justices would take up the matter.

"The voters deserve finality," said Thomas Hiltachk, a lawyer for the group, Rescue California, which represents the recall's original proponent, Ted Costa. "We need, and the voters deserve, to know sooner rather than later if this election is going to happen."

The 9th Circuit said it would give California Secretary of State Kevin Shelley, the state's top election official, one week to appeal its order. By day's end, Shelley had not said whether he would present his case to the entire 9th Circuit or to the U.S. Supreme Court, which played a crucial role in halting Florida's 2000 recount.

The order to postpone adds new drama to what has already been an extraordinary political season in the Golden State, where for only the second time in U.S. history a sitting governor faces a recall vote.

It comes as the campaign is well under way: Registrars statewide have already begun mailing out sample ballots; absentee voters have started making up their minds; campaigns have spent millions in TV and radio advertisements; and two state party conventions have been held.

Two major Republican candidates to replace Davis if he is ousted - businessman Bill Simon and former baseball commissioner Peter Ueberroth - have already dropped out, saying they didn't have enough time to build support by Oct. 7. Supporters of both said they might return to the fray should the campaign be elongated.

Davis beamed Monday when he spoke with reporters after an appearance with former President Clinton at a Compton elementary school. The governor pledged to keep making his case that the recall was risky and unwise.

"Right now, I'm assuming the election will proceed on Oct. 7," said Davis, who plans to go ahead with antirecall events with former Vice President Al Gore and Jesse Jackson this week.

Before appearing on the talk show Oprah, GOP front-runner Arnold Schwarzenegger issued a statement noting that 1.6-million Californians signed the petition to put the recall on the ballot. He pushed for an immediate appeal.

"Historically, the courts have upheld the rights of voters, and I expect that the court will do so again," Schwarzenegger said. "I will continue to vigorously campaign for governor."

The 9th Circuit panel repeatedly referred to Bush vs. Gore as its primary rationale for its ruling. In that case, the Supreme Court stopped Florida's presidential recount on the grounds that all votes were not being treated equally.

The appeals court said the same Bush vs. Gore theory applies to California, since voters using punch card machines would not be on equal footing with voters using more modern election systems.

Civil rights groups said a study showed 40,000 poor and minority California voters might have their ballots excluded if punch card ballots are used.

The panel also said it is better to resolve potential ballot problems before the vote to avoid getting caught up in "litigation over the legitimacy of the election."

The request for the delay came in a lawsuit brought by the ACLU on behalf of several civil rights groups, including the NAACP and the Southwest Voter Registration Education Project. Last month, a Republican federal judge in Los Angeles rejected the request, saying the election "reflects the will of the people," but the ACLU appealed to the 9th Circuit.

"Today's court decision represents a victory for democracy and fairness," said Antonio Gonzalez, executive director of the Southwest Voter Registration Education Project. "Rather than proceeding with an election that would have made Florida 2000 look like a festival of democracy, the court has prudently decided to wait until the election can be conducted right by replacing the outdated voting machines and helping to ensure that proper financing is available to conduct a fair and transparent election."

But punch card ballots have their advocates, and election officials in several California counties said they were confident they could run a fair election using the old machines.

"We've never had a problem with these machines," Jill LaVine, Sacramento County's interim registrar of voters, said Monday. "We did a lot of testing after the Florida election and we had one of the lowest residual rates around."

Residual rates - one of those terms, like hanging chad, that entered the popular vocabulary after the 2000 presidential vote in Florida - measure the percentage of votes that can't be counted for any of various reasons.

"It is offensive to me that people compare California's voting process to Florida," said Kim Alexander, president of the nonpartisan California Voting Foundation in Sacramento. "We used punch cards for almost four decades without any major problems."

- Information from the Washington Post, New York Times and Associated Press was used in this report.

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