Appeals Panel Sets Sept. 11 to Consider Bid to Delay Recall Vote

A federal appeals court Thursday set Sept. 11 to consider the American Civil Liberties Union’s appeal of a lower court ruling that rejected the group’s attempts to postpone the Oct. 7 recall election because some counties are planning to use punch-card voting machines.

The U.S. 9th Circuit Court of Appeals granted the ACLU’s request to expedite processing of the high-profile case in which Gov. Gray Davis’ career is on the line. Voters also will cast ballots on Proposition 54, which would prevent state and local governments from collecting and using many kinds of racial data.

The ACLU contends that the recall should be pushed back until March. The punch-card machines that Los Angeles and five other counties are planning to use in the October election would be replaced with new systems by then.

State officials settled an earlier ACLU suit, mandating that punch-card machines be replaced in all California counties by March 1, 2004, saying that they were “prone to error.”

In addition to Los Angeles County, the machines are still in use in Mendocino, Sacramento, San Diego, Santa Clara and Solano counties. The six counties represent 44% of the state electorate in the 2000 election.

In ruling against the ACLU, U.S. District Judge Stephen V. Wilson in Los Angeles said last Thursday that if he granted the group’s request, “the court would prevent all registered voters from participating in an election scheduled in accordance with the California Constitution.”

California has had a recall law for 92 years, and ACLU lawyers could have made provisions for a recall election when they settled the earlier suit, said Wilson, who presided over that case.

When Wilson approved the settlement of that case last year, he said the old machines “suffered from an error rate nearly double that of other polling technologies.”

Permitting those machines to be used in the Oct. 7 election creates a “very real risk that the margin of victory will be less than the margin of error of the voting system used,” the ACLU appeal contends.

The appeal also contends that using the old machines will disproportionately disenfranchise minority voters, noting that “counties that use punch-card systems have nearly 50% more citizens of color than counties that use other systems.”

“This is about having every vote counted,” said Mark Rosenbaum, legal director of the ACLU of Southern California. “Right now, the integrity of our state’s democracy is riding on the performance of these outdated, obsolete and decertified voting machines -- the same voting machines at the center of the 2000 Florida election debacle.”

The 9th Circuit on Thursday ordered the state to answer the ACLU brief by Sept. 4 and directed the ACLU, in turn, to reply by Sept. 8. The argument in the case will be heard by a three-judge panel in Pasadena.