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Federal Court Reviews Delay of California Recall Election - 2003-09-23

A federal appeals court is considering arguments over whether to reinstate a recall election on October 7 against California Governor Gray Davis. Last week, a three-judge panel of the same court postponed the election until March, pointing to problems with punch-card ballots used in six California counties. An 11-judge panel of the Ninth Circuit Court of Appeals heard arguments Monday.

On one side is a coalition of civil liberties groups headed by the American Civil Liberties Union. Harvard University law professor Laurence Tribe argued for a delay in the election. "As things now stand, on October 7 about half the voters in California, the ones in the six counties using punch-card machines with disproportionately high minority populations, will be several times as likely to have their votes discarded or misread," says Mr. Tribe.

On the other side, California election officials and backers of the recall say that intervening in the election would violate the rights of all California voters.

The three-judge panel had said the punch-card ballots in question have an error rate of three percent, more than one percent higher than other forms of voting. The judges pointed to the fiasco in Florida in the last presidential election, where similar ballots caused a prolonged dispute. California's punch-card ballots will be phased out under court order by the next regular election March 2.

Charles Diamond, a lawyer for a recall backer, says such problems with the ballot, if they do exist, do not warrant postponing an election. "If local election officials are working as diligently as they possibly can to address that problem and have a timetable to replace those machines, I say you don't stop an election," he says. "You don't prevent everyone from voting because some of the people who do vote may have their votes counted erroneously."

Attorneys for both sides faced skeptical questioning. In a departure from normal procedure for the San Francisco-based court, Monday's proceedings were broadcast live on radio and television.

Many legal experts say the 11-judge panel is more conservative than the three-judge panel that ordered the postponement, and may be less willing to intervene in the electoral process. The court will probably make its decision within a few days. Its ruling could be appealed to the U.S. Supreme Court.