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Court votes to recall oct 7 { September 23 2003 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2003/09/23/national/23CND-RECA.htmlhttp://www.nytimes.com/2003/09/23/national/23CND-RECA.html
September 23, 2003
Recall Vote in California to Proceed on Oct. 7, Judges Rule
By DEAN E. MURPHY with DAVID STOUT
SAN FRANCISCO, Sept. 23 — A federal appeals court ruled unanimously today that voting on whether to recall Gov. Gray Davis of California should proceed as scheduled on Oct. 7.
Soon after the ruling was issued, the American Civil Liberties Union, which had led the court challenge to the recall vote, said it would not appeal to the United States Supreme Court, meaning that there is now no legal bar to the election.
In its ruling, the United States Court of Appeals for the Ninth Circuit said that "a federal court cannot lightly interfere with or enjoin a state election," although it did acknowledge arguments that punch-card ballots in some counties might cause some votes to go uncounted.
The 11 judges went on to say that if the Oct. 7 election were blocked, "the State of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the election's proceeding on the announced date."
The Ninth Circuit issued its ruling as soon as the federal courthouse in San Francisco opened for business, less than a day after the 11 judges listened to arguments in a rehearing of the case. A three-judge panel of the court had initially ruled that the election should be postponed because of the concerns about the reliability of the punch-card ballots, though that ruling had been stayed.
The 11 judges respectfully alluded to the holding by the three other members of the Ninth Circuit, saying that "the argument is one over which reasonable jurists may differ." But the speed of the full court's ruling, and the tone of the 13-page document, suggested that the 11 judges had not agonized over their decision.
Opponents of the recall, who wanted the vote postponed until March 2, when there is a regularly scheduled primary in California, could have tried to persuade the United States Supreme Court to review the Ninth Circuit decision. But the A.C.L.U. said it would carry the fight no further. Its chances were regarded as slim in any event, since the justices do not often overturn unanimous rulings from a Circuit Court of Appeals.
Although voters will also be asked Oct. 7 to decide two propositions on amending the state's Constitution, those issues have been overshadowed by the questions on the fate of Governor Davis, a Democrat.
On Monday, backers of the recall were encouraged by hard-hitting questions posed by the Ninth Circuit judges. After the arguments, many predicted — correctly, as it turned out — that the Ninth Circuit would say that the recall election should occur as scheduled.
The 11 judges said they recognized the legitimacy of questions about the accuracy of punch-card ballots versus other voting devices. "There is significant dispute in the record, however, as to the degree and significance of the disparity," the court wrote.
In the end, the court said, it had to consider the rights of all Californians. "Time and money have been spent to prepare voter information pamphlets and sample ballots, mail absentee ballots and hire and train poll workers," the court wrote. "Public officials have been forced to divert their attention from their official duties in order to campaign." It added, "These investments of time, money, and the exercise of citizenship rights cannot be returned."
The ruling today justified the optimism that backers of the recall expressed on Monday after the 11 judges heard from both sides.
"I am convinced by this very vigorous argument that the election will be held Oct. 7," Attorney General Bill Lockyer said after the arguments. "Based on the legal arguments I heard raised, I think the plaintiffs have failed to make a sufficient finding."
The state's top election official, Secretary of State Kevin Shelley, was so confident of victory that he issued a reminder to voters that Monday was the last day to register to vote in the election and that Sept. 30 was the last day to request an absentee ballot.
"Voters deserve finality so we can prepare this election," Mr. Shelley said.
The optimism on the part of state officials was based in part on the tone of the 70-minute hearing, which was held before 11 of the 26 active Ninth Circuit judges. Nine of the judges weighed in on the discussion, with several raising blunt and often skeptical questions about the request to delay the election made in the A.C.L.U. lawsuit.
Though the judges also questioned state officials and proponents of the recall, the tenor of the hearing was set early, when one of the panel's most senior members, Judge Alex Kozinski, an appointee of President Ronald Reagan, challenged a basic notion of the civil liberties union's case.
"We don't have a Bush v. Gore problem," Judge Kozinski said.
The civil liberties union has argued that an Oct. 7 vote would result in an election debacle not unlike the disputed presidential vote in Florida in 2000 because of concerns about punch-card voting machines used in at least six counties with large minority populations.
The machines, which state election officials have declared obsolete, are not scheduled to be replaced until the state's March 2 presidential primary.
The A.C.L.U. brought the lawsuit on behalf of the Southwest Voter Registration Education Project, the National Association for the Advancement of Colored People and the Southern Christian Leadership Conference of Greater Los Angeles. Because the punch cards are concentrated in counties with large minority populations, the groups argue that minorities would be particularly hard hit by voting irregularities.
Laurence H. Tribe, a lawyer and constitutional scholar at Harvard, who represented the A.C.L.U., had barely gotten through his first sentence in an oral argument to the court when he was interrupted by a judge. The barrage of questions continued unabated, with Mr. Tribe unable to complete his prepared comments in the 30 minutes allotted for the A.C.L.U.
Nonetheless, Mr. Tribe, who represented Vice President Al Gore before the United States Supreme Court in the disputed Florida presidential recount, did not concede defeat. At a news conference later, outside the courthouse, he described the exchange as "lively" and said the judges were "very, very on today."
Asked about state officials' declaring victory, Mr. Tribe replied, "If I didn't disagree completely, I wouldn't have come out here."
The Ninth Circuit scheduled the hearing on Friday, a move that effectively wiped out a decision earlier last week by three of its most liberal judges to postpone the election. The three judges, citing Bush v. Gore, said the Oct. 7 election violated the Constitution's equal protection clause because, by one estimate, at least 40,000 ballots would not be counted in the six counties because of problems with the punch cards.
But Judge Kozinski and others on the bench questioned the analysis on the punch-card error rates, which had been conducted by a professor of political science and public policy at the University of California, Henry E. Brady. Dr. Brady found that 1 percent of votes cast on Oct. 7 in the punch-card counties would not be counted, a rate that he said was about two and a half times the error rate for other voting systems.
Judge Kozinski said Dr. Brady's analysis did not account for the fact that election officials could go back and try to recount rejected ballots. And unlike Florida, the judge noted, California has uniform standards for counting things like "hanging chads."
Judge A. Wallace Tashima, an appointee of President Bill Clinton, also suggested that there was no assurance a new system that would be in place in March in Los Angeles County, the most populous of the counties using punch-card systems, would be any better than the punch cards.
Mr. Tribe said to the judge, "We only know that the secretary of state has certified it as acceptable and is apparently satisfied," adding, "It is expected to be more user-friendly and more accurate."
Judge Tashima persisted. "But you do have the same problem with over-votes and under-votes because there's no standard of precinct scanning," he said.
"Yes, Judge Tashima," Mr. Tribe acknowledged. "Some of the problems persist in Los Angeles."
Though the legal case has focused mostly on the recall vote, the A.C.L.U. has also requested that two ballot measures also scheduled to appear on the Oct. 7 ballot be postponed as well. There was some speculation on Monday, based on some questions by the judges, that the Ninth Circuit might separate the issues of the recall and the ballot measures, allowing the recall election to go ahead on Oct. 7 but postponing a vote on the ballot measures until the March 2 primary.
Many judicial experts said the oral arguments were probably more of an intellectual exercise for the judges than a quest for new information. Even before scheduling the hearing, the judges read a series of briefs submitted by the two sides, as well as several other interested parties, that laid out the main arguments of the case.
Many of the experts said the judges would not have convened Monday's hearing, which required nine of them to travel to San Francisco from out of state, unless they intended put the election back on track.
"I don't think the oral arguments will change anybody's mind," said Peter Keane, dean of the Golden Gate University School of Law. "Many of them accepted the case in order to go ahead and change the decision. I think that will be the upshot of it."
Copyright 2003 The New York Times Company
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