Court postpones California recall vote
Tuesday, September 16, 2003
SAN FRANCISCO -- A federal appeals court threw California's tumultuous recall campaign into turmoil Monday by postponing the Oct. 7 election, citing the U.S. Supreme Court's decision in Bush v. Gore in ruling that punch-card ballots could lead to some votes not being counted.
The decision by the 9th U.S. Circuit Court of Appeals is certain to be appealed to the U.S. Supreme Court, putting the justices in a position to influence yet another monumental election.
The three-judge panel did not set a new date for the recall election, but backed a suggestion from the American Civil Liberties Union that the balloting be held during the March 2 presidential primary.
"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.
The 9th Circuit is the nation's largest and most liberal federal appeals court. It was the 9th Circuit last year that declared the reciting of the Pledge of Allegiance in public schools unconstitutional because of the words "under God."
Monday's ruling was the last of about a dozen legal challenges to the attempt to unseat Democratic Gov. Gray Davis. Several candidates are running to replace him, including Democratic Lt. Gov. Cruz Bustamante, action star Arnold Schwarzenegger and conservative state Sen. Tom McClintock.
Davis would probably benefit the most from the ruling if the election were held in March, because the presidential primary is expected to bring a large number of Democrats to the polls. It could also give Davis more time to address the state's budget crisis and force Schwarzenegger, the GOP front-runner, into a longer campaign.
The appeals court unanimously ruled it is unacceptable that six California counties would be using outdated punch-card ballots. Those counties are already under court order to replace punch cards with more modern systems such as touch-screen ballots by the March primary.
The six counties include the state's most populous, Los Angeles, as well as Sacramento and San Diego counties. Altogether they contained 44 percent of California's registered voters during the 2000 election.
The panel repeatedly referred to Bush v. Gore -- the case that decided the 2000 presidential election -- as its primary rationale. In that case, the Supreme Court stopped Florida's recount on the grounds that all votes were not being treated equally.
The appeals court said the same Bush v. Gore theory applies to California, since voters using punch-card machines would not be on equal footing with voters using more modern election systems. Civil rights groups said a study showed 40,000 poor and minority California voters might have their ballots excluded if punch-card ballots are used.
"The inherent defects in the system are such that approximately 40,000 voters who travel to the polls and cast their ballot will not have their vote counted at all," the judges wrote.
The panel also said it is better to resolve potential ballot problems before the vote to avoid getting caught up in "litigation over the legitimacy of the election."
Ted Costa, head of the Peoples' Advocate, one of the groups that put the recall on the ballot, said an appeal is certain.
"Give us 24 hours," he said.
The California official responsible for elections, Secretary of State Kevin Shelley, said through a spokeswoman he is consulting with fellow Democrat Attorney General Bill Lockyer. He would not say when the state would decide whether to appeal.
Schwarzenegger called on the secretary of state to appeal to the Supreme Court, which could reinstate Oct. 7 as the date. Both he and Davis said they would continue their campaigns in the meantime.
"Historically, the courts have upheld the rights of voters, and I expect that the court will do so again in this case," Schwarzenegger said in a statement.
"This recall has been like a roller coaster," Davis told reporters after appearing with former President Clinton at a school dedication in Compton. "There are more surprises than you can possibly imagine. I'll continue to make my case to the people that a recall is not good for them."
Independent candidate Arianna Huffington praised the decision, calling voter disenfranchisement "the dirty little secret of American politics"; McClintock called it an "outrageous decision" by a court that is the "laughingstock" of the federal judiciary.
In other developments Monday:
Schwarzenegger tried to soften his image with women voters by assuring Oprah Winfrey that reports of a salacious, party-hard past were more tall tales than truth. In a 20-minute interview taped for Monday's season premiere, Schwarzenegger insisted that old magazine articles in which he talked about marijuana and group sex were part of an attempt during the 1970s to pump up interest in bodybuilding, the sport that made him famous.
"We really were out there doing crazy things. We were trying to get the attention," he said. "At that time I didn't think I was going to run for governor."
Davis spent a second day with Clinton, the first of many high-profile Democrats set to campaign against the recall this week. Davis joined Clinton and Bustamante at the dedication of the William Jefferson Clinton elementary school in Compton and later at a fund raiser at the home of financier Ron Burkle.