SAN FRANCISCO — Federal appeals court judges sharply challenged attorneys seeking to postpone the Oct. 7 recall election, posing questions that were notably unsympathetic in number and tone during an hourlong, nationally televised hearing Monday.
Legal scholars and lawyers close to both sides of the case said after the hearing that the judges appeared to lean toward the argument, made by lawyers for Secretary of State Kevin Shelley, that postponing the election would be unfair to voters.
"I didn't see a lot of really difficult questions posed to the state," said professor Vikram Amar of UC Hastings College of Law.
He was one of many observers who said they expect the 11-judge panel of the U.S. 9th Circuit Court of Appeals to order the election to go ahead as scheduled.
The court is expected to rule this morning. Putting the election back on track would reverse a ruling issued last week by a three-judge panel of the court. That panel threw the already complex recall election into even greater confusion by ordering the election put off, probably until March.
At various points in Monday's argument, judges offered a long list of grounds, ranging from constitutional interpretation to technical points of law, that could be used to reinstate the election date.
Some judges suggested that they could order the recall to proceed but postpone the vote on two propositions now on the ballot. Propositions 53 and 54 had originally been scheduled for votes in March, but were moved up when the recall qualified for the ballot.
If the court does order the election to proceed, the American Civil Liberties Union, which challenged the election, could appeal to the U.S. Supreme Court. The votes of five of the nine justices would be needed to stop the election, however, and legal experts consider that unlikely.
The ACLU argues that punch-card voting machines that six California counties, including Los Angeles, plan to use are obsolete, error-prone and could potentially disenfranchise thousands of voters.
With the streets around the courthouse lined by satellite television trucks and the ornate, beaux-arts courtroom filled, Monday's hearing began with Harvard Law School professor Laurence H. Tribe, one of two lawyers representing the ACLU.
The ACLU decided over the weekend to bring Tribe, one of the nation's foremost constitutional scholars, from Boston to argue the constitutional issues in the case. Tribe represented Vice President Al Gore before the Supreme Court in the presidential election case in 2000.
But Tribe had barely begun his presentation when the judges began peppering him with detailed questions about the evidence that the ACLU has used to back up its lawsuit.
After Tribe, the ACLU's chief counsel, Mark Rosenbaum, faced the judges and was similarly grilled. Rosenbaum, who has won three cases in the Supreme Court, said he had never before been in an argument where questions came so rapidly and from so many different directions.
Using punch-card machines in the six counties would violate the Constitution and the principles that the Supreme Court set down in the presidential recount case, the ACLU lawyers argue.
The original three-judge panel had relied heavily on that case, Bush vs. Gore, but it came up only briefly in Monday's argument.
The constitutional violation would occur because voters in the six counties would be at greater risk of having their votes invalidated than would voters in the state's other 52 counties, the ACLU says.
As Tribe presented that argument, Judge Alex Kozinski, who dominated the hearing with his insistent, sometimes jocular, questions to both sides, quickly homed in on that point.
A study by a political science professor at UC Berkeley that was one of the chief pieces of evidence in the case was insufficient, Kozinski said. The study, he noted, had not looked at whether the errors of punch-card machines could be corrected with a hand recount. That shortcoming was virtually fatal to the ACLU's case, he told Tribe.
"It is entirely possible punch-card ballots are no worse" than other voting methods once recounts are taken into consideration, said Kozinski, a 1985 appointee of President Ronald Reagan.
California's former secretary of state, Bill Jones, a Republican, had told counties to stop using the punch-card machines, but "there is no finding of an unacceptable error rate" in his decision, Kozinski noted. The ruling might have been based on nothing more than the machines being in "a bad odor" after the problems they caused in Florida in 2000, he added. "People had lost confidence" in them.
Judge Andrew Kleinfeld, another Reagan appointee, quickly picked up a similar line of attack, quoting the decision by Jones that called punch-card machines "obsolete."
"Narrow ties are outmoded," but that doesn't make them defective, he said.
Tribe countered that Jones was talking about the error rate of the machines. "It's clear they don't just mean out of fashion," he said.