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Court delays California recall vote

Punch cards crux of issue; appeals vowed

WASHINGTON -- A federal appeals court yesterday threw into turmoil the election fight over recalling California's governor, ordering the balloting put off until March 2 because of a risk that outdated punch card machines would not allow every vote to be counted.

Relying heavily upon the Supreme Court ruling that allowed George W. Bush to become president, the US Circuit Court of Appeals for the Ninth Circuit, in San Francisco, ruled on constitutional grounds that the election could not be held as scheduled on Oct. 7. But the three-judge panel immediately put its decision on hold for seven days to allow time for appeals.

"The inherent defects in the system are such that approximately 40,000 voters who travel to the polls and cast their ballots will not have their vote counted at all," the judges declared, referring to known flaws in punch card voting machines.

The ruling, if it withstands appeals, would dramatically affect the California dispute. Staging the recall vote on the same day the presidential primary is held in March -- the next election date in the state after October -- probably would bring out more Democratic voters, perhaps helping to defeat the recall and keep Governor Gray Davis, a Democrat, in office.

Stretching out the campaign five months would also toughen the test for actor Arnold Schwarzenegger, the leading Republican seeking to replace Davis, and possibly benefit his conservative Republican rival, state Senator Thomas McClintock.

With the election only three weeks away, state officials and supporters of the move to recall Davis said they would file immediate appeals, either to a full 11-judge bench of the same appeals court or directly to the Supreme Court. Swift action is expected on any appeals.

A leader of one of the groups that gathered signatures to put the recall question on the ballot guaranteed an appeal would be filed. "Give us 24 hours," said Ted Costa, head of the People's Advocate, which intervened in the case.

A spokeswoman for Kevin Shelley, California's secretary of state, said he is consulting with Attorney General Bill Lockyer, a fellow Democrat, about a likely appeal on behalf of the state government.

The federal appeals court sharply criticized the state's plan to use punch card machines in six of the state's most populous counties. The judges said that the 44 percent of state voters who live in those counties would "be forced to use a voting system so flawed that the secretary of state has officially deemed it `unacceptable' and banned its use in all future elections. . . . The effect is not trivial."

The affected counties contain higher percentages of minority voters, increasing the chances that their ballots would be invalidated, the court noted.

Alice Huffman, president of the state NAACP, one of the groups that challenged the Oct. 7 date, praised the ruling, saying "we can't afford a repeat of the 2000 Florida election debacle." Another challenger, the Southwest Voter Registration Education Project, said "the court has prudently decided to wait until the election can be conducted right."

Among the places where the machines would be used is the state's capital, Sacramento. The appeals court noted wryly: "It is perhaps ironic that the sitting governor could well cast a vote on his own recall that would not be tallied."

Besides Sacramento County, the other counties directly affected are Los Angeles, Mendocino, San Diego, Santa Clara, and Solano.

A highlight of the court's reasoning was that the claim of unequal treatment of voters, because of the use of antiquated machines, "mirrors the one recently analyzed by the Supreme Court in Bush v. Gore," which was decided in December 2000. It noted that the highest court had said that states may not "value one person's vote over that of another" under the equal protection clause.

"Like the Supreme Court in Bush v. Gore, we face a situation in which the US Constitution requires some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied," the appeals court remarked.

The Supreme Court's 5-to-4 ruling in Bush v. Gore emphasized that it was a decision made only for the special circumstances of the dispute in Florida over the counting of its votes for president. But there have been several attempts since then to use that decision to challenge state systems.

None produced the clap of judicial thunder heard yesterday from the Ninth Circuit. The 65-page ruling was made in the last of several lawsuits that attempted to persuade state or federal courts to stop the balloting. The other challenges had failed.

Two years ago, Shelley's predecessor as secretary of state banned the use of punch card voting machines, saying "we cannot wait for a Florida-style election debacle to occur in California before we replace archaic voting systems." That ban was the result of an earlier lawsuit, which led to an agreement to replace those machines before the March 2004 presidential primary.

At that time, the March voting was the next scheduled statewide election. But, after the recall issue gained sufficient signatures to go on a state ballot, the lieutenant governor concluded that state law required that the election be held this year, and picked Oct. 7 as the date.

New voting methods will be ready throughout the state by March, so state officials decided to use the punch card system one more time, in the six counties. Besides faulting that decision, the appeals court found that one-fourth of the state's polling places would not be used on Oct. 7 because officials did not have time to get them ready.

The appeals court also said that the large number of candidates running to replace Davis -- a total of 135 -- "will make the antiquated voting system far more difficult to use." There are two issues on the ballot: whether to remove Davis from office by a simple majority vote and who should be his successor, with the candidate getting the most votes becoming governor if Davis is recalled.

The appeals court concluded that the challengers would be harmed if the balloting went forward on Oct. 7, because they "are without an adequate postelection remedy. . . . Those whose votes are not counted by the punch card machines are irreparably denied their vote and to have an equal say in the choices facing the electorate on Oct. 7."

While the court conceded that the state had a valid interest in going ahead with the balloting next month, it concluded that this did not outweigh the risk of harm to voters' rights if the punch card machines are used. "It is the public, not the state, whose interests must be protected," the court said.

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