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Appeals Court Orders Delay of Recall

Federal Judges Cite Risk of Punch-Card Errors; Swift Challenge of Ruling Likely

September 16, 2003|Henry Weinstein | Times Staff Writer

A federal appeals court Monday unanimously ordered the Oct. 7 recall election postponed, ruling that if it proceeded on schedule, voters would face an unacceptable risk of errors caused by antiquated punch-card voting machines.

The decision almost certainly will be litigated further. The three-judge panel of the U.S. 9th Circuit Court of Appeals that issued it gave lawyers for the state seven days to appeal.

But even with the outcome unresolved, the decision created new dilemmas for candidates, new legal questions for election lawyers and new headaches for the state's beleaguered voting officials. It came three weeks before the election, at a time when millions of dollars already had been spent, and thousands of absentee votes cast.

"It's just more uncertainty. It's more circus," said U.S. Sen. Dianne Feinstein (D-Calif.).

The six counties that use punch-card machines, including Los Angeles and San Diego, already were scheduled to replace them in time for the March 2 primary, which would become the likely date of the recall election if Monday's decision stands.

The case could quickly land at the U.S. Supreme Court. If it does, it would be the first major test of Bush vs. Gore, the decision that stopped the recount of Florida's votes in the 2000 presidential election. The appeals court judges who issued Monday's decision based it primarily on that high court precedent.

Gov. Gray Davis and each of the major candidates to replace him pledged to continue campaigning until a final ruling. The major campaigns said that they would continue their television advertising as scheduled.

But with uncertainty over the election date, candidates who built their plans around a six-week campaign now must consider the possibility of one lasting six months.

"It makes it so difficult to wage a campaign," said UC Regent Ward Connerly, the author of Proposition 54, which is also scheduled to be voted on next month. "If this thing is put off, that's 30,000 bucks down the drain," he said, noting that the campaign committee for the proposition had just started airing its first television commercial. "We need certainty."

Californians who already have voted -- more than 100,000 statewide, including 30,000 in Los Angeles County -- were left uncertain whether they would get a chance to vote again if the election were postponed. Secretary of State Kevin Shelley issued a statement saying that voters who planned to cast absentee ballots should still do so.

State lawyers face questions on whether a postponement would mean reopening the ballot to allow candidates to remove their names or new candidates to join the race. State law generally requires that the ballot be set within 59 days of the election.

And voting officials, already struggling to produce an election on a short deadline, were handed a new problem to consider: whether combining the lengthy recall ballot with the primary in March would produce a behemoth too large for the newer voting machines to handle.

"It's more than a wrinkle," said Los Angeles County Registrar-Recorder Conny McCormack. "No one even asked the largest county in the state if we had the capacity to run it in March. The answer is no."

Although Davis sought to maintain a studied neutrality in his public statements, he smiled broadly and appeared upbeat as he discussed the court action with reporters.

The governor took pains to point out that he was not involved in the suit, and that he supported the "right" of those who signed the petitions to have the election.

"I would like a result, however, that allows as many Californians as possible to vote," Davis said.

"I do think the prospect of a small voter turnout overruling 8 million people is not good for democracy," he said, referring to the number of people who voted last November. "It violates the sanctity of the electoral process."

Republicans, by contrast, denounced the ruling -- and the three judges, all appointed by Democratic presidents, who produced it.

Rep. Darrell Issa (R-Vista), who bankrolled the drive to put the recall on the ballot, called the ruling a "judicial hijacking."

State Sen. Tom McClintock (R-Thousand Oaks) called the 9th Circuit the nation's "most reversed court -- the same court that banned the words, 'Under God' in the Pledge of Allegiance," a reference to a decision last year by a different 9th Circuit panel. "This election is called for by the Constitution and demanded by the people of California," he said.

"Historically, the courts have upheld the rights of voters, and I expect that the court will do so again in this case," said Arnold Schwarzenegger, the other prominent Republican in the race. "The people have spoken, and their word should -- and will -- prevail."

Lawyers for the state had asked the judges to keep the election on schedule. They admitted that punch-card machines were unreliable -- former Secretary of State Bill Jones, a Republican, ruled on that two years ago when he ordered counties to phase out the machines by the end of this year.

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