KMC Forums - California Recall is back on

Court Reinstates Oct. 7 California Recall Election

Tuesday, September 23, 2003

LOS ANGELES — The California recall election (search) will go on Oct. 7 as scheduled, a full panel of the 9th Circuit Court of Appeals ruled unanimously Tuesday.

The American Civil Liberties Union (search) said later Tuesday that it would not appeal the court's decision to the U.S. Supreme Court. The ACLU argued that holding the election next month will disenfranchise 40,000 voters, many of them minorities.

The two-part vote on whether to oust Gov. Gray Davis (search) and who should replace him now appears clear to proceed.

In its ruling, the judges concluded that halting the recall election already in progress would do more harm than good.

"If the recall election scheduled for Oct. 7, 2003, is enjoined, it is certain that 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 proceedings on the announced date," read the opinion issued by the court.

The judges wrote they based their decision not on merits of the argument, but on whether the district judge who first ruled to allow the election on whether to oust Davis had correctly adjudicated the case.

"The district court did not abuse its discretion in concluding that plaintiffs will suffer no hardship that outweighs the stake of the state of California and its citizens in having this election go forward as planned and as required by the California Constitution," the opinion concluded.

The decision was a per curiam opinion, meaning the justices did not sign their names to it, and no dissenting opinions were recorded.

• Raw Data: Decision to Allow Oct. 7 Recall (pdf)

On Monday, opponents of the recall said punch card ballot machines cause error rates so high that they would disenfranchise voters in six counties -- Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano -- that won't have new voting machines in place until January 2004.

The court heard the full review just 15 days before the scheduled election, after three of its justices ruled Sept. 15 to put it off.

The 11-judge panel, which is the largest bench the 26-judge court permits to hear a case, took considerable interest in Monday's claims, interjecting within moments of opening arguments by the ACLU, which alleges that holding the election next month would disenfranchise voters.

The ACLU said these voters would not have equal protection under the law because one in every 25 minority votes would be thrown out. Attorneys argued the case relying on Bush v. Gore, the Supreme Court decision that ruled the Florida 2000 presidential recount had no uniformity and therefore its results could not be guaranteed.

The secretary of state's office and organizers of the recall election defended the Oct. 7 date, saying 600,000 voters would be disenfranchised if the absentee ballots they already sent in were thrown out.

They added that the district judge who first heard the case made the correct decision when he ruled that a compelling public interest requires the vote be held as scheduled. To delay the recall would violate the state constitution that orders an election to be held within 80 days of a recall petition's certification.

Judge Alex Kozinski, appointed to the court in 1985 by former President Reagan, asked a stable of questions of both sides, leaving his perspective inscrutable. Kozinski questioned whether anyone would be disenfranchised by faulty equipment when the state could hold off certifying the election until ballots were properly counted.

"The right to vote has never been dependent on the existence of a recount," replied ACLU attorney Mark Rosenbaum.

Kozinski also asked ACLU attorney Laurence Tribe whether the punch-card ballot is any more or less prone to errors than other machines.

"Although it's not an impossibility, the experience is such that getting the people of California to believe that this is not a second-class technology now that it has been deemed deficient because it is outmoded, it would be quite a task," Tribe said.

Kozinski and Judge Johnnie B. Rawlinson, appointed by former President Clinton in 2000, challenged attorneys supporting the recall to explain what the threshold for voting errors can be before it violates the state constitution.

"We cannot value one person's vote over another," Rawlinson said.

If one out of every 10 votes doesn't count, Kozinski said, is that "close enough for government work?"

"If it was 50 percent I think we'd want to take a searching look," attorney Chuck Diamond conceded. Still, he stressed, "You don't stop everybody from voting if some of the people who do vote may have their votes counted erroneously."

In the end, the judges agreed that the ACLU has a legitimate concern about the use of the punch card system, suggesting that an opening exists for post-election litigation. But the court ruled: "At this time it is merely a speculative possibility, however, that any such denial will influence the result of the election."

The judges also ruled to keep the two initiatives scheduled to be on the ballot in place. Propositions 53 and 54 relate to the state budget and racial privacy respectively.

On Monday, the justices took the unusual step of allowing cameras in the courtroom to televise the hearing. Each side was given 30 minutes to make its case.

Eight of the 11 judges hearing the case were appointed by Democrats, the other three by Republicans, but overall the group is considered fairly conservative.

Candidates have continued to operate as though the election were to be held on Oct. 7, and have fund-raised steadily.

On Tuesday, Davis met with Connecticut Sen. Joe Lieberman, one of the 10 Democratic presidential candidates, to discuss homeland security.

With poll numbers closing on whether to recall the governor, Davis has said he wants to get it over with, even though some Democrats believed that delaying the election until March, when the presidential primary occurs, would allow voters to cool off and would bring more Democrats to the polls.

"We are ready to beat the recall on Oct. 7," Davis campaign spokesman Peter Ragone said Tuesday. "This recall has already cost enough in terms of public funds and time away from the public's business. It is time to move forward."

On Monday, Republican candidate Arnold Schwarzenegger released two new statewide 30-second television ads, one criticizing Lt. Gov. Cruz Bustamante and Republican state Sen. Tom McClintock -- without mentioning them by name -- for taking tribal donations. The second ad criticizes Davis and supports the recall.

On Monday, Bustamante, the only viable Democrat running to replace Davis, was ordered to pay back about $4 million in donations from Indian tribes that were illegally put into an old campaign account that was not subject to new campaign financing rules.

Bustamante and Schwarzenegger are running very closely in polls, but McClintock has considerable backing by Republicans. Schwarzenegger advisers and others have called on McClintock to drop out to make sure Schwarzenegger gets the votes to beat Bustamante.

Rep. Darrell Issa said Monday that if either McClintock or Schwarzenegger didn't drop out, he would urge voters to vote no on recalling the governor because a yes vote would assure a victory for Bustamante.

"As someone who some people call 'the godfather of the recall,' nobody should be more determined to remove Gray Davis from office," said Issa, who spent $1.7 million to get the recall on the ballot.

About 90 of the 135 candidates appeared Monday night as audience members of "The Tonight Show With Jay Leno," the venue Schwarzenegger used to launch his candidacy.

Fox News