Rescue California

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Recall spotligt on appeals court
JUDICIAL FOCUS: Panel today hears case to delay election

September 22, 2003

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and other infrastructure, and Proposition 54, which would largely ban state and local governments from collecting racial and ethnic data from individuals. Both were originally placed on the March 2004 ballot but were moved up when the recall election was ordered.

SPEEDY RULING EXPECTED

A ruling is expected quickly, perhaps by midweek. The losing side could appeal to the Supreme Court, and recall proponent Ted Costa, a Sacramento anti- tax activist, has already said he would do so.

The American Civil Liberties Union, which sued on behalf of civil rights groups seeking to postpone the election, hasn't said whether it would appeal an unfavorable verdict to the Supreme Court. Hellman, the University of Pittsburgh professor and expert on the Ninth Circuit, predicted that such an appeal would be futile.

"If the panel allows the election to go forward, I think there's no chance the Supreme Court would take this (case)," he said. "They might take it if the court upheld the (three-judge) panel."

An appeal would give the Supreme Court its first chance to elaborate on Bush vs. Gore, its December 2000 ruling that halted the Florida presidential recount and led to the inauguration of George W. Bush.

That ruling said Florida violated its obligation to treat voters equally by letting counties use different procedures for recounting unclear punch-card votes.

The appellate panel in last Monday's decision said the ACLU's lawsuit, though factually different, relied on the same theory: that voters' rights to equal treatment would be violated by the use in some counties of obsolete machines with high error rates.

The ACLU submitted expert testimony that punch cards made 2 1/2 times as many errors as other systems used in California. In the six counties that still use punch-card machines -- Los Angeles, San Diego, Santa Clara, Sacramento, Solano and Mendocino -- 40,000 valid votes would not be counted, the ACLU said.

The court said voters' problems would be compounded by the long ballot, the elimination of one-fourth of the state's polling places for the election, and the reduction in the normal time period to review ballot materials for Props. 53 and 54.

BUSH VS. GORE CITED

But Costa's lawyers said the court misconstrued Bush vs. Gore, noting that the Supreme Court did not object to Florida's use of different voting machines in different counties.

Secretary of State Kevin Shelley, the defendant in the suit, said the court had improperly intervened in an election in which 538,000 people had cast absentee ballots as of Friday afternoon.

He also argued that the ACLU, which filed the previous suit over punch-card machines, had accepted the March 2004 date for their elimination and should be bound by it. The ACLU countered that it couldn't have foreseen the recall election.

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