2 Sides Clash in Court Arguments Over California Recall
By DAVID STOUT NEW YORK TIMES
WASHINGTON, Sept. 22 — A federal appeals court in San Francisco heard arguments today on whether to postpone the Oct. 7 California recall election, with one side contending that some people would be deprived of their rights if the vote takes place on schedule and the other side insisting that it would be wrong to delay it.
"This is a case about some very basic provisions of the United States Constitution," Prof. Laurence H. Tribe of Harvard University said in arguing that the election to decide the fate of Gov. Gray Davis should be postponed.
Not so, argued state Deputy Attorney General Douglas Woods. He said a lower court judge who refused a month ago to postpone the election made the correct decision. "It is in the public interest to proceed with a public election that is imminent," Mr. Woods said.
The case was heard by 11 members of the United States Court of Appeals for the Ninth Circuit, which gave no indication when it would rule. But a ruling is expected quickly, possibly within a day or two.
After that, whichever side loses will almost certainly try to persuade the United States Supreme Court to review the case, although it is be no means clear that the high court would want to do so.
Today's arguments were reminiscent in some ways of the case of Bush v. Gore, in which the courts studied terms like "dimpled chads" and other peculiarities of punch card ballots in Florida. That case went to the Supreme Court, which ultimately handed the presidency to George W. Bush by effectively ceding Florida's electoral votes to him.
Professor Tribe participated in the Florida case, on the side of the Democrats. He said the same problems still existed with punch card ballots, which are much more likely than modern voting machines to cause ballots to go uncounted and would still be used by at least six California if the recall election takes place on Oct. 7.
"We are fooling ourselves if we think that California has outdistanced Florida in a fundamental way," Professor Tribe said.
As for Federal District Judge Stephen V. Wilson, who refused a request to postpone the election, Professor Tribe said, "If the trial judge got the law right, I wouldn't be here."
But Mr. Woods argued, as did Charles Diamond, the lawyer for the main forces behind the recall, that California has uniform standards for dealing with punch card ballots, unlike Florida.
Mr. Diamond dismissed his opponents' suggestion that the voting problems documented in the Florida case were applicable in California. "When you read Bush v. Gore at 30,000 feet," he said sarcastically, "you can find language for any appetite."
Several judges at today's arguments wondered aloud how much inaccuracy was acceptable in an election. Stripped to their essentials, the parties who want the election postponed contended that punch card voting is so inaccurate that it deprives some people of their rights.
And the parties who say the election should proceed contended that no election is perfect, regardless of the technology, and that as long as the state is trying to conduct a fair election, it should take place on Oct. 7.
Chief Judge Mary Schroeder and 10 other members of the Ninth Circuit heard the arguments.
Expecting an overflow crowd for the hearing, court officers warned that public seating was limited and that people should watch the proceedings on the C-SPAN television network, which carried them live, or on cable news channels, which provided extensive coverage.
The 11 judges are reconsidering a ruling handed down on Sept. 15 by three other judges of the Ninth Circuit that the election be postponed. In declaring that the election should be put off, the three-judge panel was persuaded by the American Civil Liberties Union, which has contended that holding the vote on Oct. 7 would disenfranchise too many people, especially members of minority groups, because the punch-card voting machines used in their districts are vulnerable to malfunction.
However, the three judges stayed their own ruling for a week to allow for appeals, and the decision on Friday by the full court to rehear the case today effectively dissolved the three judges' action, so the campaigning has gone on fairly uninterrupted.
If the recall vote were indeed postponed, it would probably be held on March 2, 2004, since California will hold a primary election that day.
Political analysts have offered different theories on whether Governor Davis's chances of survival would be bolstered or weakened by a delay. Some analysts say the governor's prospects would improve with a postponement because that would allow time for the anger driving the recall movement to dissipate.
Other analysts say a delay could hurt the governor because Californians would have more time to think about the things that helped to make him him unpopular in the first place, notably budget problems and (in the view of his foes, at least) his somewhat off-putting personality.
Whatever the truth, there is little doubt that many Californians want the whole thing settled sooner rather than later. Strategies aside, Governor Davis himself has voiced that feeling.
"No one knows in whose interest a delay in this election would be," Mr. Davis said last week, asserting that in any event his campaign was gaining steam. "I have assumed from the outset that this election will be on Oct. 7. My attitude is, let's just get this election over with."
The recall campaign has dominated the news in the Golden State to such an extent that Lt. Gov. Cruz M. Bustamante, the only Democratic officeholder on the ballot to replace Mr. Davis should he lose the recall vote, said the public was suffering from "recall fatigue."
The people can hardly be blamed if they do not know every candidate's positions on the issues. There are 135 candidates on the ballot to replace Mr. Davis. Some, especially Arnold Schwarzenegger, have high profiles. Others are known only to relatives and neighbors.
Although forecasting the outcome of lawsuits can be as hazardous as predicting football scores, the forces that want the recall to go ahead on Oct. 7 have reason to be encouraged. Since a majority of the Ninth Circuit judges voted to review the ruling by the three-judge panel, it is reasonable to speculate that there was dissatisfaction with the panel's ruling.
And it is quite possible that whatever the 11 judges on the Ninth Circuit decide will be the last word, legally speaking. That is because, some longtime court-watchers say, the Supreme Court may not want to review the case, since the justices already have a highly complex case on their platter — the McCain-Feingold campaign-finance law — that must be disposed of soon.
Besides Chief Judge Schroeder, the members of the Ninth Circuit who heard the case today were Judges Alex Kozinski, Diarmuid F. O'Scannlain, Andrew J. Kleinfeld, A. Wallace Tashima, Barry G. Silverman, Susan P. Graber, Mary Margaret McKeown, Ronald M. Gould, Richard C. Tallman and Johnnie Blakeney Rawlinson.
Eight of the 11 judges were appointed by Democratic presidents — 7 by Bill Clinton and one by Jimmy Carter — and 3 by Republicans — 2 by Ronald Reagan and one by the first President Bush.
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