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The California Recall Election

September 15, 2003 at 12:00 AM EDT
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GWEN IFILL: The 9th Circuit Court of Appeals threw yet another monkey wrench into the chaotic California recall contest today, delaying the election in a manner which could take the whole thing to the U.S. Supreme Court. Here to help us sort out the events of the day are Claire Cooper, legal affairs writer for the Sacramento Bee, and Bruce Cain, director of the Institute of Governmental Studies at the University of California at Berkeley. He’s currently a guest scholar at the Brookings Institution here in Washington.

Claire Cooper, explain to us what the court, in a nutshell, did today.

CLAIRE COOPER: In a nutshell, the court said that the situation in California, just before this recall election, is quite like the situation that existed in Florida in 2000 after the presidential election in which voters in one county or actually in California in six counties were at risk of having their votes made to count for less than in the rest of the state. The court said that this was a violation of the 14th Amendment.

GWEN IFILL: This was a court case that the ACLU, the American Civil Liberties Union, brought against the state or against the organizers of this recall election. Was there any signal during the arguments last week that the court was raising an eyebrow at this recall, or at least the timing of it?

CLAIRE COOPER: Six eyebrows, three judges. The court obviously was very concerned about the 14th Amendment implications, more so with respect to the planned vote on two initiatives that are scheduled to be on the same ballot as the recall election. With respect to the recall, the court said, well, perhaps California does have a strong interest in getting a speedy vote on the — up or down on Governor Davis. But there’s no such emergency in acting on the two initiatives, although the court did seem very concerned about the recall as well, and in today’s opinion it distinguished between the two issues only in some really minor ways.

GWEN IFILL: In the two initiatives you’re alluding to, one is the race identification initiative, right? And the other?

CLAIRE COOPER: The first one has to do with the collection of race data by the state for purposes of gauging police activity and many other things. The other has to do with infrastructure funding. It would require that a certain portion of the state budget be set aside for infrastructure improvements.

GWEN IFILL: Bruce Cain, let’s talk about the impact, first the short-term impact of the court’s decision today.

BRUCE CAIN: Well, short-term impact of course is that it throws tremendous uncertainty on what’s going to happen and whether the campaign should go forward and whether in the end we’re going to have a recall election on October 7, or whether we’re going to have a recall election in March, and that has tremendous implications in terms of the relative odds of the successful recall or not.

GWEN IFILL: March being the next regularly scheduled election, the presidential primary.

BRUCE CAIN: That’s right. The March primary, it’s a presidential primary and all the action will be on the Democratic side, and right from the start when we were discussing the timing of this and the people that were getting the recall signatures were working very hard, they wanted to get it done quickly enough so that they wouldn’t have to have this election during the March primary, because the March primary will definitely favor the Democrats and by implication favor Cruz Bustamante and Governor Davis.

GWEN IFILL: Is there a longer term impact, or is it too soon to say since they have seven days to decide whether to appeal?

BRUCE CAIN: Well, the longer term impact actually goes beyond this case. And that has to do with this whole equal protection doctrine that Claire was talking about. When the decision was made in Bush v. Gore and the court trotted thought argument that there might be inequities in the way votes were counted, which implicated an equal right to have a vote counted, that that might extend to many different issues, different kinds of machines, different kinds of procedures for recounting votes, et cetera. So clearly if this kind of argument prevails here, you might see it in other states, just challenging the possibility that these punch card machines might bias the outcome of an election.

GWEN IFILL: Now in many ways this decision is the fruit of Bush v. Gore, this decision to try to update voting machines came as a result of what happened in 2000, but is it overstating it to say this is Bush v. Gore redux?

BRUCE CAIN: Remember, by the way, that the court tried very hard in Bush v. Gore to make sure that it wouldn’t extend to these other cases, but yes, there are a lot of similarities that are starting to develop between what’s going on in the recall and Bush v. Gore. And now bringing the courts in is yet another similarity. These are highly polarized races, a lot is at stake.

Recently the Democrats have tried to nationalize the campaign, bringing in Bill Clinton, soon to bring in Gore, et cetera, there’s a lot at stake, the polls suggest that if indeed Bill McClintock gets out of race it could be extremely close between — there are two Republicans, if one of the Republicans gets out, it could, according to the polls, be an extremely close race. And now you’ve got the court potentially if the Supreme Court were to intervene, and I don’t know that they would, but if they were it would be a situation of where the court is called in as a so-called neutral referee, trying to decide a case which doesn’t have a lot of precedent and has enormous political implications.

GWEN IFILL: Claire, the argument that the ACLU is making and the court apparently agreed with is that some voters would be disenfranchised by this, that is in those six counties where they weren’t going to be able to replace those punch card machines that there would be people who were more likely to be minority and who were more likely to be in urban areas who were not going to be able to cast the vote. Is that a good way of describing what was at stake here today?

CLAIRE COOPER: There are actually two issues that were merged. One was strictly an issue of discrimination, one county against another. Los Angeles voters would be less likely to have their votes counted because punch cards are used there, than San Francisco voters. But, yes, the areas that are affected are mostly the most urban counties, and those have the heaviest minority populations. The big issues, though, was county against county.

GWEN IFILL: The 9th Circuit Court, the three judges you alluded to before, has a controversial reputation. Can you tell us about that, Claire?

CLAIRE COOPER: The reputation is one thing. The reality is quite another. The court does have a reputation of being the most liberal of the federal appellate courts. That’s partly the result of some very high profile decisions that that court has handed down, and that the U.S. Supreme Court has reversed.

For example, the California three strikes law last year, which was struck down by the 9th circuit and reinstated by the U.S. Supreme Court. But I’ve looked at the statistics very carefully over the course of perhaps five or seven years. And it’s really not so. Most years the 9th circuit has just about the same reversal rate in the Supreme Court, and that’s the gauge that everyone uses as the rest of the circuits, pretty much the same as state appellate courts, so it’s pretty much in the middle of the pack statistically.

GWEN IFILL: Bruce Cain, is that your reading as well?

BRUCE CAIN: Yeah, and of course one possibility now is that it will go to a larger panel of the 9th circuit – a non bank panel. And when they do that they choose it by lottery and if they do that there’s no guarantee that it will be a very liberal panel or it’ll be a very conservative panel. So I think it’s probably a mistake to make any predictions and say that it’s liberal overall.

GWEN IFILL: Finally, quickly, Claire Cooper, do we think that if this election is put off until March that those voting machines will be ready in time?

CLAIRE COOPER: They have to be. The California secretary of state decertified the punch card machines and they must be phased out by March 1 of 2004.

GWEN IFILL: Claire Cooper and Bruce Cain, thank you very much.