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Lawyers, Judges Spar in Lively Debate

September 23, 2003

An 11-member panel of the U.S. 9th Circuit Court of Appeals on Monday heard an appeal of a three-judge court's decision last week to postpone California's Oct. 7 recall election. The exchanges between judges and lawyers for both sides were lively -- and occasionally entertaining. The panel, composed of mainly moderate to conservative judges, is expected by many analysts to reverse last week's order.

Cast of Characters

The Judges

Diarmuid F. O'Scannlain, 66, appointed by President Reagan, and Andrew J. Kleinfeld, 58, appointed by former President Bush, are among the most conservative justices.

Alex Kozinski, 53, is a Reagan appointee with Libertarian leanings.

Former Oregon Supreme Court Justice Susan P. Graber, 54, a longtime friend of Hillary Rodham Clinton, is regarded as a centrist.

Johnnie Rawlinson, 54, is a former prosecutor who is conservative on criminal justice cases.

M. Margaret McKeown, 52, was appointed by President Clinton and had her appointment held up for two years by Senate conservatives.

The six judges asked some of the more pointed questions during the hearing.

The Attorneys

ACLU lawyer Mark Rosenbaum and Harvard law professor Laurence Tribe, a well-known liberal constitutional scholar, fiercely argued that 40,000 voters might have their votes voided because of faulty punch-card voting machines in Los Angeles and five other counties.

Deputy Atty. Gen. Douglas Woods is an attorney for California Secretary of State Kevin Shelley, who oversees elections. He argued the election should proceed Oct. 7.

Charles Diamond of the Los Angeles law firm O'Melveny & Meyers is an attorney for Peoples Advocate, a pro-recall group.


A key question: whether punch-card ballots are faulty enough to warrant postponement of the election.

Kozinski: [The plaintiff's expert witness' analysis] doesn't include any recapture of lost ballots that might happen as a result of a recount.... As we know from Florida, you can go back and recapture some of those votes. He does not take the process to the end. He does not look at what the rate of error is when you get done through the entire process.

Tribe: I think that's right....

Kozinski: It's entirely possible that when you're done with the entire process, punch-card ballots are no worse than any other system.

There simply is no finding of an unacceptable error rate. Is there? Or did I miss it?

Tribe: We're not counting sheep. We're counting votes. And it matters that people do or don't have confidence....

Kleinfeld: So it's unconstitutional if the press gave it a bad name?

Kleinfeld (disputing that punch cards were a deficient method): They didn't decide that the technology was unacceptable because of its error rate. They said it was outmoded. Narrow ties are outmoded.

Tribe: I want to make sure I don't have too-narrow a tie.... In context when the accompanying statement dealt with the error rate ... it's clear they don't just mean out-of-fashion....


Analysts say that the federal Voting Rights Act holds that voting procedures that devalue votes of minorities should be invalidated. Would minorities be discriminated against if punch-card ballots are used in an Oct. 7 election?

Rawlinson (questioning Diamond): Doesn't Bush v. Gore instruct us that we cannot value one person's vote over that of another, and doesn't the disparity [in punch-card voting] in fact do that?

Diamond: When you read some of the language in Bush v. Gore at 30,000 feet the way the plaintiffs do you can find something for every appetite....

Kozinski: Let's say L.A. County knows the error rate of this machine is 10%. One out of every 10 votes doesn't count, but close enough for government work. We're gonna keep using them because they're cheap and convenient. People are used to them and most of the time it makes no difference at all.... Is there an equal protection violation ... or can a county say, 'Hey, close enough.' "?

Diamond: Ten percent we are told is de minimus....

Kozinski: Fifty percent? Every other vote?

Diamond: Fifty percent, I think we'd want to take a searching look at that, but that's not what this case is about [interrupted by laughter]

Kozinski: Five votes out of 10! I feel like Abraham.


Could the appeals court overturn the trial judge who heard the initial lawsuit if his legal reasoning was sound?

O'Scannlain: We don't review the underlying merits of the case as long as the trial judge gets the law right notwithstanding the fact that we might have applied the facts differently. We still have to defer.

Tribe: If the trial judge got the law right, I wouldn't be here.... When we come to the fundamental issues of constitutional law at the heart of the case, it seems to me ... as things now stand on Oct. 7 about half the voters in California -- the ones in the six counties using punch-card machines with disproportionately high minority populations -- will be several times as likely to have their votes discarded or misread.


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