Judge Puts Off Decision on Whether to Delay Recall Election

A federal judge delayed until Wednesday a decision on whether to postpone the gubernatorial recall election until March, when six urban counties, including Los Angeles, are expected to have new, more reliable voting machines.

Lawyers for the American Civil Liberties Union of Southern California are seeking to block the use of punch-card ballots in the Oct. 7 election, arguing that the equipment is too error-prone. “I would like to think about this some more in light of the arguments

Monday’s hearing came three days after another federal judge, Jeremy Fogel in San Jose, threatened to delay the October election until state authorities secured federal approval for changes in the election process in Monterey County.

Monterey is one of four California counties that, because of previous allegations of discrimination, require “preclearance” from the U.S. Department of Justice for changes such as consolidating voter precincts. Fogel said he would hold another hearing in that case on Aug. 29.

At Monday’s two-hour hearing in a downtown Los Angeles courtroom, most of the judge’s questions were aimed at Mark D. Rosenbaum, the ACLU’s legal director.

During one exchange, Wilson noted that to delay the election until March, as Rosenbaum has requested, “would be beyond the broadest application of the California Constitution,” which requires that a recall election take place no later than 180 days after the petitions are certified. That deadline, he said, would be in January, not March.

Many of Wilson’s questions focused on why civil rights groups had entered into a consent decree last year that gave local elections officials until next March to replace punch-card ballots. Former Secretary of State Bill Jones had conceded that the punch-card machines -- the sort that caused problems in the presidential election in Florida in 2000 -- are antiquated.

The ACLU did not try to stop earlier elections, the judge noted. Rosenbaum responded that officials had needed time to start up new voting systems and that a special recall election had been “unforeseeable.”

He said it would have been difficult, if not impossible, to stop the 2002 general election because the terms of so many statewide officials had expired.

In October, as many as 40,000 voters in Los Angeles County might not have their ballots counted because of flaws in the punch-card system, Rosenbaum said.

The six counties still using punch-card systems have a higher percentage of African American, Hispanic and Asian American voters than other counties, potentially diluting their voter strength, Rosenbaum argued.

Deputy Atty. Gen. Douglas Woods rejected those statistics, saying that no one knows for sure how many votes would not be counted. “It’s guesswork based on past elections,” he said.