Wednesday, September 24, 2003
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En Banc Ninth Circuit Panel Unanimously Reinstates Oct. 7 Recall Vote; ACLU Says It Will Not Appeal
From Staff and Wire Service Reports
With stunning decisiveness, a federal appeals court yesterday unanimously put California’s recall election back on the calendar for Oct. 7, sweeping aside warnings of a Florida-style fiasco less than two weeks from now.
The American Civil Liberties Union, which had sought a postponement, said it would not appeal to the U.S. Supreme Court, removing the final legal roadblock to the recall and setting up a 14-day sprint among the candidates in the historic election to remove Gov. Gray Davis.
The 11-member en banc panel of the Ninth U.S. Circuit Court of Appeals swiftly overturned a decision issued last week by three of the most liberal judges on the court.
The three judges had postponed the election until perhaps March to give six counties more time to switch over to electronic voting systems from the error-prone punch-card ballots that caused the recount mess in Florida during the 2000 presidential election. The three-judge panel repeatedly cited the Supreme Court’s Bush v. Gore decision that effectively decided the 2000 election.
The more conservative 11-judge panel acknowledged that allowing the election to go forward now could cause some votes to go uncounted. But the panel said that the candidates, the voters and the state have already spent a huge amount of time and money on the assumption the election would be held Oct. 7.
If the election is postponed, the court said in a per curiam decision, “it is certain that the state of California and its citizens will suffer material hardship by virtue of the enormous resources already invested in reliance on the elections proceeding on the announced date.”
“In short, the status quo that existed at the time the election was set cannot be restored because this election has already begun,” the court said in a ruling issued less than 20 hours after the panel heard arguments.
The judges acknowledged the possibility of lawsuits after the votes are in and counted, saying the ACLU—which represented the Southwest Voter Registration Education Project and the NAACP, among other plaintiffs—is “legitimately concerned that use of the punch-card system will deny the right to vote to some voters who must use that system.”
But the court added: “At this time it is merely a speculative possibility, however, that any such denial will influence the result of the election.”
The panel said the plaintiffs had a stronger case under the Voting Rights Act than under the Equal Protection Clause. Sec. 2 of the act, the judges noted, requires only “a causal connection between the challenged voting practice and [a] prohibited discriminatory result.”
But the plaintiffs, the panel concluded, had shown only “a possibility of success on the merits,” not the “strong likelihood” of victory needed to justify a preliminary injunction.
The panel also concluded that the decision of U.S. District Judge Stephen V. Wilson of the Central District of California to deny a preliminary injunction, on the ground that postponement would cause more harm than good, was entitled to deference and was not an abuse of discretion.
Among other things, the court cited the time and money that have been spent to prepare voter information pamphlets and sample ballots, mail out absentee ballots, and hire and train poll workers.
It noted that candidates have raised money and “crafted their message to the voters in light of the originally-announced schedule and calibrated their message to the political and social environment of the time.”
Also, it said that if the election is postponed, the hundreds of thousands of absentee voters who have already cast their ballots “will effectively be told that the vote does not count and that they must vote again.”
Dorothy M. Ehrlich, the ACLU’s executive director for Northern California, said the ACLU will not pursue its case to the Supreme Court.
“With the election just two weeks away, we do not believe we should prolong the uncertainty any longer,” she said. “At this point it is important that the candidates, the campaigns and the voters know that the election will be held on a date that is certain.”
At the same time, ACLU legal director Mark Rosenbaum said an election in which a large percentage of voters will use punch-card ballots “breaks the heart of democracy.”
“Elections ought to be decided by voters, not flea-market voting machines,” he said.
Assemblyman Howard Kaloogian, a San Diego-area Republican who chairs one of the groups seeking the governor’s recall, called the decision a “victory by the people” and accused recall opponents of seeking “to use every means at their disposal including filing frivolous lawsuits and using illegal means to raise campaign contributions in a desperate attempt to keep Gray Davis in power.”
But the campaigns of Davis and Lt. Gov. Cruz Bustamante, who has been endorsed by the Democratic Party as a fallback candidate if the recall passes, said they were prepared for, and optimistic about, the Oct. 7 vote.
Davis campaign spokesman Peter Ragone said:
“We are ready to beat the recall on October 7. 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, but it is now doubly important that counties do everything in their power to make sure every single vote is counted. We want the election to be fair, inclusive and democratic.”
His counterpart at the Bustamante campaign, Luis Vizcaino, had a similar take:
“We are pleased with the court’s decision. it is important to move forward, resolve this election, and get back to work.”
Copyright 2003, Metropolitan News Company