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Court Could Review Postponement of California Recall Election - 2003-09-16

9th Circuit Court of Appeals says a full panel of 11 judges will decide whether or not to reopen the issue

A federal appeals court may reconsider a decision to postpone California's recall election of Governor Gray Davis. The court could convene an 11-judge panel to reconsider the decision of three of its members.

The day after a three-judge panel postponed the October 7 recall, the Ninth Circuit Court of Appeals said that a full panel of 11 judges will decide whether or not to reopen the issue. It asked the parties in the dispute to file written arguments by Wednesday afternoon.

Monday, the three-judge panel delayed the election until an unspecified future date, saying the punch-card ballots used in six of California's most populous counties are prone to error.

The decision to delay the vote was controversial. Most analysts believe it will help the Democratic governor and hurt his Republican rivals.

For Republican candidate Tom McClintock, the ruling was politically motivated, and it was made by an appeals court known for its liberal rulings. "Punch-card ballots re-elected Gray Davis less than a year ago, and there were no objections then," he said.

The three-member panel said the error-prone ballots would unfairly hurt minority voters, who are concentrated in big counties like Los Angeles. The court said the ballots have an error rate of three percent, and that if they are used, 40,000 votes might not be counted.

Los Angeles is the largest county to use the disputed ballots, which caused problems in Florida in the last presidential election. But the city's top voting official says the ballots work well enough, if voters are given the right instructions. She says postponing the vote would be confusing and expensive, and create logistical problems for election officials.

Governor Davis lost an earlier court attempt to delay the October election, but distanced himself from Monday's ruling, saying the choice of election date is beyond his control.

"The courts will determine if the election is going to be postponed. Whenever the election is held, I hope that everyone who wants to vote has the opportunity," he said. "I hope that every vote that is cast is actually counted. And I hope that as many votes as possible result in the determination of this election because the more people who vote, the more legitimate the results."

If the full appeals court reverses the three-judge panel, the election will go ahead October 7. If the court allows the ruling to stand, the election will await installation of modern voting machines, and will probably take place March 2nd.