Court affirms Oct. 7 California recall election

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A federal appeals court ruled unanimously yesterday that the California recall election would go on as scheduled Oct. 7, dismissing a decision by a three-judge panel that it be delayed for months.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals rejected the notion advanced by the American Civil Liberties Union that the recall election of Gov. Gray Davis must be delayed until March because some precincts would use the kinds of punch-card ballots that caused confusion in the 2000 presidential election in Florida.

"There is no doubt that the right to vote is fundamental, but a federal court cannot lightly interfere with or enjoin a state election," the panel wrote in its decision, rendered less than 24 hours after hearing oral arguments.

The ACLU said yesterday it will not appeal the decision to the U.S. Supreme Court, ensuring that the recall will go forward.

"With the election just two weeks away, we do not believe we should prolong the uncertainty any longer," said Dorothy M. Ehrlich, executive director for the ACLU of Northern California.

The ACLU based its argument on the Supreme Court decision in the Bush v. Gore case, which stopped the recount in Florida because election officials were using different standards to determine legal votes. The 9th Circuit noted in its decision yesterday that the Bush v. Gore decision couldn't be expanded to apply to how votes were cast during an election.

"In Bush v. Gore, the leading case on disputed elections, the [Supreme Court] specifically noted: 'The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections,'" the court wrote.

The federal court was sympathetic to the idea that punch-card ballots might be less accurate than newer methods used elsewhere in California, but concluded that "it is merely a speculative possibility" that voters in districts using punch cards would be affected significantly.

It also said it was reluctant to interfere "with an election after voting has begun," a reference to the estimated 500,000 absentee ballots that were cast for the election and would be thrown out if the recall was delayed.