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Federal Appeals Court Reinstates Oct. 7 Recall

Tuesday’s decision by 11 members of the 9th U.S. Circuit Court of Appeals means that in two weeks, California voters will decide whether to retain Gov. Gray Davis or replace him with one of a long list of candidates.

The American Civil Liberties Union, which brought the challenge, said Tuesday that it would not appeal the decision to the Supreme Court.

The appeals court reinstated a previous ruling by a district court judge who refused to postpone the election. The judges based their decision on the state’s constitution and not any precedent set by the Supreme Court case, Bush v. Gore, which had been cited by the three-judge panel.

“The district court did not abuse its discretion in concluding that plaintiffs will suffer no hardship that outweighs the stake of the state of California and its citizens in having this election go forward as planned and as required by the California constitution,” the ruling said.

The judges did leave open the possibility of post-election litigation once the votes are in and counted.

They said 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. At this time it is merely a speculative possibility, however, that any such denial will influence the result of the election.”

A day after the Sept. 15 decision delaying the vote, the appeals court announced it would revisit the case — a sign that the court was unhappy with the original decision.

After rehearing the case Sept. 22, the 11 judges unanimously overturned the decision of a three-judge panel from the same circuit. The original panel ruled in favor of the ACLU and other plaintiffs who had argued that the election should be delayed because outdated, error-prone voting equipment could disenfranchise some citizens.

A February 2002 federal court decision compelled California counties to update to their antiquated voting systems, but six counties — representing about 40 percent of the state’s registered voters — were still in the process of replacing the old systems when the recall election was scheduled.

Lawyers for Secretary of State Kevin Shelley urged the panel to let the recall take place on Oct. 7. They argued that the California constitution requires recall elections to be held no later than 80 days after enough signatures of registered voters are gathered. They also said the vote should take place as originally scheduled because more than 600,000 absentee ballots had already been cast.

The recall election was triggered July 23 after California Secretary of State Kevin Shelley certified 1.3 million recall petition signatures. Under state law, 900,000 signatures were required to force an election. After the signatures were certified, Lt. Gov. Cruz Bustamante, who later announced his candidacy to replace Davis, was required to schedule the election within 60-80 days. He scheduled the election for Oct. 7 — 77 days from the certification announcement.

Davis sounded fed up last week with the recall process, saying Friday: “My attitude is, let’s just get it over with, let’s just have this election on Oct. 7, put this recall behind us so we can get on with governing the state of California.”

As the appeals court considered its decision, the GOP congressman who funded the recall petition effort urged one of the two leading Republican candidates to drop out.

Rep. Darrell Issa (R-Calif.) said Monday that if state Sen. Tom McClintock and actor Arnold Schwarzenegger remained on the ballot, he would urge voters to vote against the recall of Davis. Voting for the recall would assure a victory for Bustamante, who would benefit if Republican voters split their votes among several candidates, Issa said.

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