Court Sharply Challenges Recall Delay

SAN FRANCISCO —  Federal appeals court judges sharply challenged attorneys seeking to postpone the Oct. 7 recall election, posing questions that were notably unsympathetic in number and tone during an hourlong, nationally televised hearing Monday.

Legal scholars and lawyers close to both sides of the case said after the hearing that the judges appeared to lean toward the argument, made by lawyers for Secretary of State Kevin Shelley, that postponing the election would be unfair to voters.

“I didn’t see a lot of really difficult questions posed to the state,” said professor Vikram Amar of UC Hastings College of Law.

He was one of many observers who said they expect the 11-judge panel of the U.S. 9th Circuit Court of Appeals to order the election to go ahead as scheduled.

The court is expected to rule this morning. Putting the election back on track would reverse a ruling issued last week by a three-judge panel of the court. That panel threw the already complex recall election into even greater confusion by ordering the election put off, probably until March.

At various points in Monday’s argument, judges offered a long list of grounds, ranging from constitutional interpretation to technical points of law, that could be used to reinstate the election date.

Some judges suggested that they could order the recall to proceed but postpone the vote on two propositions now on the ballot. Propositions 53 and 54 had originally been scheduled for votes in March, but were moved up when the recall qualified for the ballot.

If the court does order the election to proceed, the American Civil Liberties Union, which challenged the election, could appeal to the U.S. Supreme Court. The votes of five of the nine justices would be needed to stop the election, however, and legal experts consider that unlikely.

The ACLU argues that punch-card voting machines that six California counties, including Los Angeles, plan to use are obsolete, error-prone and could potentially disenfranchise thousands of voters.

With the streets around the courthouse lined by satellite television trucks and the ornate, beaux-arts courtroom filled, Monday’s hearing began with Harvard Law School professor Laurence H. Tribe, one of two lawyers representing the ACLU.

The ACLU decided over the weekend to bring Tribe, one of the nation’s foremost constitutional scholars, from Boston to argue the constitutional issues in the case. Tribe represented Vice President Al Gore before the Supreme Court in the presidential election case in 2000.

But Tribe had barely begun his presentation when the judges began peppering him with detailed questions about the evidence that the ACLU has used to back up its lawsuit.

After Tribe, the ACLU’s chief counsel, Mark Rosenbaum, faced the judges and was similarly grilled. Rosenbaum, who has won three cases in the Supreme Court, said he had never before been in an argument where questions came so rapidly and from so many different directions.

Using punch-card machines in the six counties would violate the Constitution and the principles that the Supreme Court set down in the presidential recount case, the ACLU lawyers argue.

The original three-judge panel had relied heavily on that case, Bush vs. Gore, but it came up only briefly in Monday’s argument.

The constitutional violation would occur because voters in the six counties would be at greater risk of having their votes invalidated than would voters in the state’s other 52 counties, the ACLU says.

As Tribe presented that argument, Judge Alex Kozinski, who dominated the hearing with his insistent, sometimes jocular, questions to both sides, quickly homed in on that point.

A study by a political science professor at UC Berkeley that was one of the chief pieces of evidence in the case was insufficient, Kozinski said. The study, he noted, had not looked at whether the errors of punch-card machines could be corrected with a hand recount. That shortcoming was virtually fatal to the ACLU’s case, he told Tribe.

“It is entirely possible punch-card ballots are no worse” than other voting methods once recounts are taken into consideration, said Kozinski, a 1985 appointee of President Ronald Reagan.

California’s former secretary of state, Bill Jones, a Republican, had told counties to stop using the punch-card machines, but “there is no finding of an unacceptable error rate” in his decision, Kozinski noted. The ruling might have been based on nothing more than the machines being in “a bad odor” after the problems they caused in Florida in 2000, he added. “People had lost confidence” in them.

Judge Andrew Kleinfeld, another Reagan appointee, quickly picked up a similar line of attack, quoting the decision by Jones that called punch-card machines “obsolete.”

“Narrow ties are outmoded,” but that doesn’t make them defective, he said.

Tribe countered that Jones was talking about the error rate of the machines. “It’s clear they don’t just mean out of fashion,” he said.

The third Republican appointee on the panel, Judge Diarmuid O’Scannlain, raised a different issue that the judges could use to reverse the earlier court decision.

U.S. District Judge Stephen V. Wilson, of Los Angeles, had heard the case originally and ruled against the ACLU last month, O’Scannlain noted. At the time, Wilson said the plaintiffs had not presented enough evidence to merit a court order stopping the election.

Every election represents a unique moment, so altering the election schedule would be unfair to California voters, Wilson had ruled.

Court rules say that “as long as the trial judge gets the law right,” appeals courts must defer to the rulings the trial judge made about the facts in a case, O’Scannlain said. “Is that not the law of the circuit?” he asked.

Tribe replied: “If the trial judge got the law right, I wouldn’t be here.”

O’Scannlain’s position could allow the judges to put the election back on schedule “with a minimum of discussion on what they may see as difficult issues” involving the Constitution, said UCLA law school professor Daniel Lowenstein.

Tribe and Rosenbaum also faced tough questions from Judges Susan Graber, Margaret McKeown, Wallace Tashima and Johnnie B. Rawlinson, all appointees of President Bill Clinton.

When Deputy Atty. Gen. Douglas Woods took the lectern, arguing for Shelley, the defendant in the case, he said Wilson had made the right decision when he ordered the election to proceed. If Wilson was correct then, “today, with this election ongoing, he is even more right,” Woods said.

Even if Wilson interpreted the law wrongly, there was still a public interest in holding the election on Oct. 7, Woods said.

Kozinski, however, pressed Woods on one major element of Wilson’s ruling.

In addition to their constitutional arguments, the plaintiffs also contend that using the punch-card machines would violate the federal Voting Rights Act. The counties that use the punch-card machines have more minority voters, on average, than do the state’s other counties. So if the machines have a greater error rate, minority voters would be at greater risk of having their votes invalidated, the ACLU argues.

When Woods said that Wilson had gotten the law right in his ruling, Kozinski interrupted.

“He sort of missed it on the Voting Rights Act, just between us,” the judge said, drawing laughter from the crowded courtroom. “I won’t tell if you won’t tell,” he added.

The threshold for proving a violation of the Voting Rights Act is low, and Kozinski appeared to be suggesting that the ACLU had presented enough evidence to make a case under it.

Woods countered that even if the election plan violated the voting rights law, the proper response would be to allow the election to go forward and then examine whether a problem existed, not to issue a court order postponing the vote.

At least one judge, Richard Tallman, a Clinton appointee, appeared to second that argument, noting that stopping the election now would “invalidate more than half a million votes that have been cast” as absentee ballots.

Plenty of time would exist to bring legal challenges after the election, Tallman said, adding that the law may allow for “going ahead with an illegal election when it is imminent.”

Kozinski also fenced with Los Angeles attorney Charles P. Diamond, who represented Ted Costa, the Sacramento man who filed the original recall petition. Diamond argued that the use of error-prone voting machines would not create a constitutional violation. Local officials have to be allowed some leeway in deciding what technology to use, Diamond said.

Kozinski asked if Los Angeles County could decide to count only every other vote.

“That wouldn’t fly , would it?” the judge asked.

Later, Kozinski asked Diamond if there would be a problem if the machines produced a 10% error rate in the county, or a 50% error rate.

“I feel like Abraham,” he said, referring to the biblical story in which Abraham haggles with God, urging him not to destroy Sodom and Gomorrah if he can find even a few good people in those cities.

“We would want to take a look at that,” Diamond finally conceded as the courtroom erupted in laughter.

Judges McKeown and Rawlinson also pressed Wood on a few points. But only Rawlinson’s questions indicated much sympathy with the ACLU’s case.

Some of the judges, particularly McKeown, suggested that the legal test for postponing the vote on the two ballot propositions would be different than for the recall.

In his argument, Rosenbaum emphasized that since neither of the initiatives would go into effect before 2005, postponing a vote on them would have little immediate impact.

Judge Wilson had given “pretty short shrift” to the arguments over the ballot propositions, McKeown said.

“Judging from the arguments, it is certainly plausible [the court] could split the baby” by delaying an election on the initiatives, said Amar.

Other legal scholars, however, said they thought that outcome unlikely.

At the end of the hearing, Chief Judge Mary M. Schroeder gave Rosenbaum 30 seconds to rebut the arguments made by his opponents. Rosenbaum, saying he would try to make three points all at once, told the judges that the evidence presented about the errors caused by punch-card machines made this “the strongest case that has ever been in this circus -- circuit.”

His mistake drew laughter both from the judges and the audience as Rosenbaum left the podium red-faced.