Court reinstates Oct. 7 recall vote
SAN FRANCISCO — With stunning decisiveness, a federal appeals court Tuesday unanimously put California’s recall election back on the calendar for Oct. 7, sweeping aside warnings of a Florida-style fiasco 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 panel of the 9th 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 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, “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 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.”
Some observers thought a delay would have benefited Davis by allowing voter anger over the state’s problems to cool, and because many Democrats would be drawn to the polls for the presidential primary in March.
But even Davis said in recent days that he wanted to see the election go forward next month, and campaigns from both parties hailed the court’s decision.
“I think we have the momentum and I think we should strike while the iron is hot,” the governor said while campaigning with presidential candidate Sen. Joe Lieberman. “I think people are deciding as the date narrows, as the date is around the corner, that this is not good for California. I’d rather have the election now.”
Arnold Schwarzenegger, the leading Republican in the race, said: “This legal process has made clear that a March election would deprive the people of California the opportunity to vote without delay and without confusion. It is time for the legal wrangling to end.”
Davis, a Democrat, has seen his approval ratings sink for his handling of California’s ailing economy and energy crisis. Lt. Gov. Cruz Bustamante is running as a fallback Democratic candidate if voters oust Davis, and Republicans Schwarzenegger and state Sen. Tom McClintock are among 135 candidates also campaigning for Davis’ job.
Legal scholars had predicted yesterday’s outcome, if not the unanimous vote. A day after the three-judge panel delayed the vote, the court announced it would reconsider the case with 11 judges — a sign the court had misgivings.
The 11 judges — none of whom were on the original three-judge panel — based their decision on the California Constitution, not any precedent set by Bush v. Gore.
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.
In other campaign developments: