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Federal court postpones ca recall { September 15 2003 } Original Source Link: (May no longer be active)
http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2003/09/15/state1340EDT0092.DTLhttp://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2003/09/15/state1340EDT0092.DTL
Federal appeals court postpones California's Oct. 7 recall vote
DAVID KRAVETS, AP Legal Affairs Writer
Monday, September 15, 2003
©2003 Associated Press
(09-15) 11:43 PDT SAN FRANCISCO (AP) --
A federal appeals court postponed California's Oct. 7 gubernatorial recall election, ruling the historic vote cannot proceed as scheduled because some votes would be cast using outmoded punch-card ballot machines.
In what was the last of about a dozen legal challenges to the attempt to unseat Gov. Gray Davis, a three-judge panel of the 9th U.S. Circuit Court of Appeals said Monday it is unacceptable that six counties would be using outdated punch-card ballots, the type that sparked the "hanging chads" litigation in Florida during the 2000 presidential election.
The appellate panel agreed with the American Civil Liberties Union that the voting machines were prone to error and that Davis' fate could be decided later, perhaps during the regularly scheduled March 2 presidential primary. By that time, the counties have promised to replace their punch-card machines under a court order in separate litigation.
The counties include the state's most populous region, Los Angeles, in addition to Mendocino, Sacramento, San Diego, Santa Clara and Solano. They represented 44 percent of the state's registered voters during the 2000 election.
"In sum, in assessing the public interest, the balance falls heavily in favor of postponing the election for a few months," the court said.
Ted Costa, head of the Sacramento-based Peoples' Advocate, one of the groups that put the recall on the ballot, said the group's attorneys will appeal the ruling.
"Give us 24 hours. We'll get something off to the Supreme Court," he said.
A Davis spokesman said the governor will continue his campaign "until the issue is resolved in the courts," but supported the appeals court's ruling.
"Anything that leads to greater enfranchisement in California is something we support," said spokesman Peter Ragone.
State officials, who conceded in court documents that the punch-card voting mechanisms are "more prone to voter error than are newer voting systems," said they had to review the ruling before deciding whether to appeal to the Supreme Court.
It was not immediately clear how the decision, if it survives, would impact the campaign in California's first voter-driven election to unseat its chief executive. The court stayed imposition of its decision for a week to allow time for appeals.
The 9th Circuit is the nation's largest and most liberal federal appeals court. All three judges on the panel that ruled Monday were appointed by Democrats.
The court held that the state constitution's requirement that recall elections be held no later than 80 days after enough signatures of registered voters had been collected was not a good enough reason to hold a vote in which as many as 40,000 votes, by one expert's estimation, would be wrongly counted or thrown out because of the outmoded voting machines.
"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.
By forcing some voters to use outdated machines, voters in some counties were more likely to be disenfranchised than voters in other counties, the judges ruled unanimously.
Evoking memories of the uproar over the 2000 presidential election in Florida, the judges said an Oct. 7 recall vote would be a "constitutionally infirm election" and that not stopping it now would pave the way for "bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory."
The Davis camp, and major Democratic and Republican candidates hoping to succeed him, have been waging an all-out campaign blitz of broadcast messages, fund-raisers and appearances throughout the state.
The Rev. Jesse Jackson said he will continue with his plan to visit California on Tuesday to oppose the recall. Jackson is expected to speak at rallies at the University of California, Berkeley and San Jose State University and to appear with Davis at a San Francisco church.
The San Francisco-based appeals panel overturned an Aug. 20 ruling by U.S. District Judge Stephen V. Wilson of Los Angeles, who said he would not delay the recall election. Wilson said it would be acting against the will of California's voters. In July, Secretary of State Kevin Shelley said more than 900,000 signatures of registered voters were collected to force a recall, and by law had about less than three months to call the hurry-up election.
State law also required Shelley to move from the March ballot to the recall ballot the only two voter initiatives that qualified for the ballot. Voting on those measures also has now been delayed.
One measure, Proposition 53, allocates state funding for schools and roads. The other, Proposition 54, prohibits California public governments and schools from tracking employees or students by race.
In other lawsuits, civil rights groups unsuccessfully fought to move Proposition 54 to the March ballot to give minorities more time to study it. In addition, some counties, to cut costs and conduct the election on a hurry-up schedule, were reducing the number of polling places, a move civil rights groups said would disenfranchise minority voters in areas with low voter turnout.
The case is Southwest Voter Registration Education Project v. Shelley, 03-56498.
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Editors: David Kravets has been covering state and federal courts for a decade.
©2003 Associated Press
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