Court Ruling Keeps Recall on Track for Oct. 7 Ballot

Chances that a court might block the Oct. 7 gubernatorial recall election grew more remote Wednesday after a judge in Los Angeles rejected complaints about punch-card voting machines and Monterey County officials admitted that they could proceed even if not allowed to slash the number of polling places open to voters.

U.S. District Judge Stephen V. Wilson rejected claims by the American Civil Liberties Union that the election should be delayed until March, when six counties that now use punch-card machines are set to convert to systems considered more reliable.

“Clearly, the public interests in avoiding wholesale disenfranchisement, and/or not plunging the state into a constitutional crisis, weigh heavily against enjoining the election,” Wilson said.

ACLU lawyers had argued that voters in six punch-card counties, including Los Angeles and San Diego, would be disenfranchised because the machines are more error-prone than other voting methods. Problems with punch-card machines figured prominently in Florida’s disputed 2000 presidential vote.

But Sally McPherson, San Diego County’s registrar of voters, said voters in her county are familiar with punch-card machines, and would have an easier time negotiating the 135-candidate recall ballot.

“I feel more confident about these than if I were just putting in a new system,” she said. “They’re saying now that this could be a close election, but we used these machines in 2002 to elect a governor, and that one could have been close too.”

In San Jose, another federal judge will decide in two weeks whether to stop Monterey County from drastically reducing the number of polling places from 190 to 86, a move that election officials used to save money and time in the shortened election planning period.

Because of past election problems, Monterey and three other California counties -- Kings, Merced and Yuba -- are required under the 1965 Voting Rights Act to apply for approval from the Justice Department before they can change any procedures, such as moving polling locations or redrawing precinct boundaries.

On Friday, the San Jose judge stopped Monterey from mailing absentee ballots to its 350 overseas voters until the Justice Department grants clearance for the county to proceed with its plans.

If authorities don’t respond before Aug. 29, U.S. District Judge Jeremy Fogel said, he will hold a hearing to decide whether to let the election proceed.

Monterey County elections chief Tony Anchundo acknowledged this week that voting in his county could proceed even if Justice Department officials insisted that he not consolidate precincts.

“Anything is possible with sufficient funds, but it would be extremely difficult to do,” Anchundo said.

One issue that the Justice Department is considering is whether Proposition 54, which would prevent state and local governments from collecting racial data in California, can be moved up from the March presidential primary to appear on the October ballot.

Election law experts said it remains unclear whether that issue alone could prevent the recall from proceeding in October.

What is clear, however, is that the recall can happen only if all 58 counties can hold the election. Thus, the election hinges on Monterey County’s application to consolidate 190 voting precincts into 86 “superprecincts.”

“I had two months to do four months of work,” Anchundo said. “I had to minimize the amount of work necessary in order to put on this election.”

Most other counties in the state are planning to consolidate their voter precincts and launch absentee-voter drives to reduce the number of poll workers that they must find and train in the next seven weeks, as well as limit how many last-minute calls they must make to reserve schools, community centers and churches as polling places.

But only Anchundo and his counterparts in Kings, Merced, and Yuba counties must submit written requests for approval in keeping with the Voting Rights Act.

According to the act and its amendments, any voting area that imposes some qualification on its voters -- such as making only English-language ballots available -- and has less than 50% turnout in a given presidential election must come under review by the Justice Department.

“The act was initially aimed at the Deep South, where there was a pattern of racial discrimination in voting,” said Brian Landsberg, professor at the McGeorge School of Law in Sacramento. “But in 1972 it was expanded to say that jurisdictions with English-only ballots and Spanish-speaking voters needed to be watched.”

All four California counties have large populations of immigrant voters who are covered by the act. Monterey County has had a history of legal battles over minority access to elections.

But the counties also contain large military bases, and the transient nature of military service can significantly reduce the number of people of voting age who register or turn out.

“They stay registered in their home counties,” said George Misner, the Kings County clerk. “In 1972, the state had an English-only ballot, and that was the test. But every county in the state had that problem -- it’s just that these four had the bases.”

Once an application for clearance has been made, the Justice Department has 60 days to approve or reject the proposed changes. But in California, where local special elections can be called in as little as 88 days and statewide recalls in 60, election workers often submit their requests only a few days before the first absentee ballots are sent.

“The current practical reality is that you can’t get it done on time,” said Pete Moock, assistant Kings County counsel. “But we’ve submitted 100 requests since 1972, and we’ve never had any objection.”

Officials in Kings, Merced and Yuba said they could revert to earlier plans if the Justice Department denied clearance.

Merced’s assistant county registrar, Deanna Brown, said she was completing her pre-clearance application and expected to submit it today. She said she had made minor changes, such as turning two precincts that had shrunk to fewer than 250 voters into vote-by-mail precincts and moving the location of one polling place.

Yuba County officials said they had not changed the plan they used in their last countywide election, and did not need to file for clearance.

Monterey County’s Anchundo said his workers were proceeding with their original plan to have only 86 voting precincts.

If the application is denied and the judge orders Monterey to proceed with the election, workers will have to start from scratch in preparing to add 104 precincts. Anchundo said his biggest worry is that the judge’s order will be lifted after it is too late for him to send out the overseas absentee ballots.

“With each day that passes, it makes it harder and harder to ensure that they will receive and be able to return ballots on time,” he said. “I am aware that we could be violating their constitutional rights.”

Times staff writer Maura Dolan contributed to this report.