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Court Reinstates Oct. 7 California Recall

September 23, 2003

SAN FRANCISCO (AP) _ A federal appeals court Tuesday reinstated California’s Oct. 7 gubernatorial recall election, rejecting a three-judge panel’s decision to put it off for months.

Hours later, the American Civil Liberties Union said it would not appeal the ruling to the U.S. Supreme Court, removing the final legal roadblock to an historic Election Day just two weeks away.

The 11-member panel of the 9th U.S. Circuit Court of Appeals unanimously overturned the Sept. 15 decision of a three-judge panel from the same circuit. The three-judge panel postponed the election because six counties would use outdated punch-card ballots that were the subject of the ``hanging chads″ battle in the 2000 presidential election in Florida.

In its decision Tuesday, the appeals court reinstated a ruling by a district court judge who originally refused to postpone the election. The judges based their decision on the state’s constitution, not any precedent set by Bush v. Gore.

``Plaintiffs will suffer no hardship that outweighs the stake of the state of California and its citizens in having this election go forward as planned and as required by the California constitution,″ the judges wrote, ruling a day after hearing 70 minutes of oral arguments.

A day after the three-judge panel’s decision delaying the vote, the full court announced it would revisit the case with 11 judges _ a sign the court was not happy with the original decision.

The judges Tuesday left open the possibility of post-election litigation after the votes are counted _ or not.

They said the ACLU is ``legitimately concerned that use of the punch card system will deny the right to vote to some voters who must use that system. At this time it is merely a speculative possibility, however, that any such denial will influence the result of the election.″

Davis, a Democrat, has been dogged by his handling of the state’s ailing economy. Lt. Gov. Cruz Bustamante is running as a fallback Democratic candidate if voters oust Davis, and Republicans Arnold Schwarzenegger and state Sen. Tom McClintock are among 135 candidates also campaigning for Davis’ job.

Some observers thought a delay in the recall vote would have benefited Davis by allowing voter anger over the state’s problems to cool, and because many Democrats would be attracted to the polls for the presidential primary if the recall election were moved to March.

``We are ready to beat the recall on Oct. 7,″ Davis campaign spokesman Peter Ragone said Tuesday. ``This recall has already cost enough in terms of public funds and time away from the public’s business. It is time to move forward.″

Luiz Vizcaino, a spokesman for the Bustamante campaign, said: ``We are pleased with the court’s decision. It is important to move forward, resolve this election, and get back to work.″

Schwarzenegger’s campaign released a statement saying: ``It is time for the legal wrangling to end. It is time for this election to go forward. It is time to let the people decide.″

Jennifer Cressey, a spokeswoman for the McClintock campaign, said the three-judge panel’s decision to postpone the election had been a distraction and that ``this election is called for by the constitution and demanded by the people of California.″

Arianna Huffington, an independent candidate who had supported a delay in the election, said she was disappointed that ``the court has decided that some people’s votes matter more than others″ and called for an extension of the voter registration period that ended Monday.

Lawyers for Secretary of State Kevin Shelley urged the 11-judge panel Monday to overturn the three-judge panel. They said the California constitution requires recall elections to be held no later than 80 days after enough signatures of registered voters are gathered. They also said the vote should go on because more than 600,000 absentee ballots had been turned in.

The counties whose voting machines prompted the litigation include Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano. They represent about 40 percent of the state’s registered voters.

Noting the uproar over the 2000 presidential election, the three-judge panel had ruled that an Oct. 7 recall vote would be a ``constitutionally infirm election″ and that not stopping it now would pave the way for ``bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory.″

Agreeing with the ACLU, the original opinion often cited Bush v. Gore, the case in which the U.S. Supreme Court stopped Florida’s presidential recount. The high court stopped it because Florida lacked uniform standards on how to actually recount the votes _ such as what to do with ``hanging chads,″ the judges said.

The case is Southwest Voter Registration Education Project v. Shelley, 03-56498.

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On the Net:

9th Circuit: http://www.ce9.uscourts.gov/

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