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Recall spotligt on appeals court Under a spotlight that includes television coverage and an expected crowd of hundreds of spectators and reporters filling three overflow courtrooms, the Ninth U.S. Circuit Court of Appeals will review a case that has thrown political campaigns, election officials and voters into uncertainty. A week ago, a three-judge panel of the court ordered the Oct. 7 election delayed, until six counties, with nearly half the state's voters, replace their outdated punch-card voting machines, the same equipment that earned notoriety in Florida's "hanging chad" election of 2000. Under a previous settlement, punch cards are due to be eliminated in California by March 2004, the next scheduled statewide election. The ruling delaying the vote was set aside Friday when a majority of the full court called for a rehearing before the 11-judge panel. The move sidetracked sponsors of the recall, who were preparing an immediate appeal to the U.S. Supreme Court, but it may make that appeal unnecessary. The court rules on about 4,500 cases a year in three-judge panels and refers only about a dozen to the larger panels for rehearings, generally in important cases or those in which panels have reached conflicting rulings. In most cases, the 11-judge panel disagrees with the three-judge ruling -- 49 out of 65 times over a five-year period, according to a study published in 2000 by Arthur Hellman, a University of Pittsburgh law professor. "Substantially more often than not, it (the larger panel) will reverse the result," Hellman said in an interview. "If you were a betting person, you would bet the court would let the election go forward, irrespective of the identities of the judges." Beyond the statistics, the luck of the draw seems to favor reinstatement of the Oct. 7 election date. PANEL CHOSEN BY LOTTERY
The panel that ruled last week, chosen by lottery, consisted of three Democratic appointees -- Harry Pregerson, Sidney Thomas and Richard Paez -- who all have generally liberal records. As many court-watchers predicted, they proved to be receptive to arguments that the use of error-prone punch-card machines threatened the rights of thousands of voters to have their ballots counted equally, and that such a risk justified the drastic step of postponing the election. While eight of the 11 judges on today's panel were picked by Democratic presidents, most of those are appointees of former President Bill Clinton with records of centrism and caution. Of the three Republican appointees, two are probably the appeals court's most conservative members, Judges Diarmuid O'Scannlain and Andrew Kleinfeld. One analyst, Professor Vikram Amar of the UC Hastings College of the Law, said such a panel, if it found constitutional problems in punch-card voting, might come up with more modest solutions than delaying the election -- perhaps ordering the state to increase polling places and voter education, and to agree to recount procedures if the election is close. "Even if they see a problem, they won't jump to an extreme remedy," Amar said. The court might also let the recall proceed and order two ballot propositions put over until March, he said.
The initiatives are Proposition 53, which would require the state to devote 3 percent of its budget to
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