Federal
appeals court postpones recall vote to improve
ballots
SAN
FRANCISCO (AP) -- The federal appeals court
that postponed California's historic Oct.
7 gubernatorial recall election on Monday
repeatedly referred to the U.S. Supreme
Court's decision in Bush v. Gore as its
primary rationale.
Ruling
in the last of about a dozen legal challenges
of the election to recall Democratic Gov.
Gray Davis, the judges found it unacceptable
that six counties would use the same kind
of error-prone punch-card ballots that prompted
the "hanging chads" litigation in Florida's
2000 presidential election.
The
three-judge panel of the San Francisco-based
9th U.S. Circuit Court of Appeals agreed
with the American Civil Liberties Union
that to avoid disenfranchising voters, Davis'
fate could be decided later, perhaps during
the regularly scheduled March 2 presidential
primary.
By
then, the counties should have replaced
their outdated machines, as required under
a separate court order.
The
counties include the state's most populous,
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,''
Judges
Harry Pregerson, Richard Paez and Sidney
Thomas jointly wrote. All three were appointed
by Democratic presidents.
In
Bush v. Gore, the U.S. Supreme Court stopped
Florida's recount on the grounds that Florida
lacked uniform standards for how to actually
count the votes -- such as what to do with
"hanging chads." That lack of uniformity,
the high court said, violated the Equal
Protection Clause, because not all votes
were being treated equally.
The
appeals court said the same Bush v. Gore
theory applies to California, since voters
using punch-card ballot machines with an
error rate as high as 3 percent would not
be on equal footing with voters using more
modern election systems. The errors add
up to 40,000 voters who might have their
punch-card ballots excluded, the court said.
Elections
experts agreed that Monday's decision flows
directly from the Supreme Court's reasoning
in the Florida case.
"I
think this is a straightforward application
of Bush v. Gore," said Rich Hasen, a Loyola
School of Law election scholar.
If
the U.S. Supreme Court were to reverse the
9th Circuit's decision, "They would have
to gut the rational of Bush v. Gore and
also a long line of election cases," John
Ulin, a Los Angeles attorney and election
law expert.
Mark
Rosenbaum, legal director for the American
Civil Liberties Union of Southern California,
which filed the lawsuit, called the decision
a "masterpiece" that hews closely to the
Supreme Court's "insistence that every vote
must count, every vote must be counted and
every voter and every group of voters must
have the same opportunity to have their
votes counted."
The
appellate court stayed imposition of its
decision for a week to allow time for appeals.
State
officials, who had conceded in court that
the punch-card voting mechanisms are "more
prone to voter error than are newer voting
systems," said they will review Monday's
ruling before deciding whether to appeal.
"It
would be very hard not to appeal," conceded
California Attorney General Bill Lockyer,
who, like every other official elected statewide
in California, is a Democrat.
The
California Constitution requires recall
elections to be held no later than 80 days
after enough signatures are gathered for
the election to be certified. But the three-judge
panel -- part of the nation's largest and
most liberal federal appeals court -- said
it was more important to avoid disenfranchising
voters.
Noting
the uproar over the 2000 presidential election,
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."
Ted
Costa, head of Peoples' Advocate, a Sacramento-based
group that helped put the recall on the
ballot, said they will surely appeal.
"Give
us 24 hours. We'll get something off to
the Supreme Court," Costa said.
Davis
and the 135 candidates to replace him if
a majority of Californians vote him out
of office have been waging an all-out campaign
blitz of broadcast messages, fund-raisers
and appearances as Oct. 7 nears. All the
major candidates said they would continue
campaigning while the case is appealed.
The
leading Republican candidate, Arnold Schwarze-negger,
demanded that Shelley "immediately appeal
this decision on behalf of the citizens
who have exercised their constitutional
right to recall Gray Davis, and who expect
an election on Oct. 7."
The
ruling overturned an Aug. 20 decision by
U.S. District Judge Stephen V. Wilson of
Los Angeles, who said a delay would be against
the will of California's voters. More than
900,000 registered voters signed petitions
to force the hurry-up election.
The
ruling also would delay two voter initiatives
on the ballot, including the controversial
Proposition 54, which would prohibit California
governments and schools from collecting
racial data.
|
