L.A. Election Chief Urges Court to Allow Oct. 7 Vote

Los Angeles County’s chief election official urged a federal appeals court Wednesday to permit the recall election to be held on schedule Oct. 7, warning that putting off the vote could cause widespread confusion and ballot errors -- precisely the problems the judges said they were trying to avoid when they ordered the election postponed.

“I have every confidence” that the election “can and will be administered fairly and effectively in the county of Los Angeles using the punch-card voting system,” Conny B. McCormack, the county’s registrar-recorder wrote in a letter to the U.S. 9th Circuit Court of Appeals.

McCormack’s statement came as lawyers for the secretary of state and for a group supporting the recall filed briefs urging the appeals court to reconsider Monday’s decision postponing the election. The American Civil Liberties Union, which brought the challenge, urged the judges to let the current ruling stand.

Attorneys for Ted Costa, the Sacramento man who began the recall petition drive seven months ago, said delaying the election “would subject the citizens of California to an additional five months of rudderless leadership, precisely at a time when the need for leadership is most urgent.”

“The problems facing California are grave, ranging from near insolvency of its treasury, to the flight of jobs and businesses, to a hopelessly broken workers’ compensation system, to a stalemated Legislature,” the brief said.

By contrast, the ACLU told the judges that the state brought the problem on itself by scheduling the election before Los Angeles and five other counties could phase out punch-card voting machines that state officials concede are obsolete.

“The constitutional violation in this case is the unfortunate consequence of the state’s ... insistence on squeezing this election into the brief window in time before all of California’s counties will have made the transition, already begun but not completed, to modern, accurate, and state-certified voting equipment,” the ACLU said.

Court sources said they expect the judges to decide by the end of the week whether to reconsider the ruling. If a majority of the judges decides to reconsider, the case would be argued for a second time before a panel of 11 judges.

Also on Wednesday, state election officials reported that the number of absentee ballots already cast in the election had risen sharply in the last several days, reaching roughly 448,000. It is unclear whether those votes would have to be recast if the election were postponed.

County officials began mailing absentee ballots Sept. 8, and about 1.75 million have been sent out so far. On Monday, a survey of counties indicated that more than 100,000 absentee ballots had been returned. The number that have come in this week surprised some elections officials.

“This is something I’ve never seen,” said Alice Jarboe, Sacramento County elections manager, who took in 7,000 ballots Wednesday. Her county had received about 30,000 ballots of 150,000 sent out.

In Los Angeles, 54,000 absentee ballots had been returned as of Wednesday, officials said.

On Monday, a three-judge panel of the 9th Circuit held that using punch-card voting machines in Los Angeles and five other counties posed a risk of disenfranchising thousands of voters because of the machines’ relatively high rate of errors. Putting the election off until new voting machines become available in a few months would solve the problem at a relatively low cost, the judges said.

But McCormack’s letter suggested that putting off the election could create new problems in the state’s largest county, which accounted for just under a quarter of the votes cast in the last two statewide elections.

If the recall were set for the next regularly scheduled election -- the March primary -- Los Angeles County would have to use two different voting systems, McCormack wrote.

The new system the county plans to use to replace punch-card machines has a limited capacity to list candidates and ballot measures. “If the recall election were consolidated with the primary election, the number of pages required to print the contests scheduled for the primary election for the president, Congress, state Senate, state Assembly, the Board of Supervisors, judges, etc., plus various ballot measures, would exceed the 12-page capacity,” of the new machines, McCormack wrote.

As a result, the county would also have to use some other type of paper ballot system to supplement the machines, she said.

Unfamiliar Systems

“Using two different systems at the voting precincts has never been done before in Los Angeles County,” she added. “To require voters to master the use of two unfamiliar voting systems at the same election invites confusion and ballot errors.”

Although McCormack has no official standing in the case, her declaration could be significant to the judges, said Loyola law professor Richard L. Hasen, an expert on election law who submitted a letter urging the court not to rehear the case.

The 9th Circuit judges could view her statement “as providing more facts in terms of how to balance” the differing interests in the case, Hasen said.

The ultimate decision by the judges could turn on “the equity question” -- weighing the degree of harm that would be caused by holding the election on Oct. 7 contrasted with the damage potentially caused by a delay, he said.

In addition to McCormack’s plea, the judges received a letter from a Riverside attorney representing the California Assn. of Clerks and Election Officials. It said that the punch-card machines have a reliable record.

The six counties that use punch-card machines “have conducted manual recounts in multiple elections, which demonstrate actual evidence that these systems are reliable,” the brief said.

In 2001, former Secretary of State Bill Jones, a Republican, told counties to phase out the punch-card machines, ruling that they were obsolete.

The letter from the clerks association also noted that California’s counties already have invested $25 million in the election, “which cannot be recovered if the election is postponed for six months.”

In his brief, Secretary of State Kevin Shelley said that state and local governments combined had spent $30 million to $50 million on the election. Reconsideration of the court’s ruling is appropriate given the exceptional importance of the issues, the brief said.

Shelley emphasized that the California Constitution requires that once enough signatures have been submitted to put a recall on the ballot, the election must be held within 80 days.

A delay would irreparably harm the state by interfering with its “mandated duty to proceed with the ongoing election,” he wrote.

Attorneys for Costa argued that putting the election off would exacerbate the problems that led to the recall election in the first place.

“The panel’s decision effectively entrenches for at least an additional five months a governor whose recall was petitioned” by more than 1.6 million voters, said the brief by Costa’s attorney, Charles P. Diamond.

Diamond also contended that the 9th Circuit panel had misinterpreted Bush vs. Gore, the Supreme Court decision that brought an end to the presidential election in 2000.

In that case, the high court halted a recount in Florida, saying that because the state lacked a uniform standard for counting ballots, a recount would violate the Constitution’s guarantee that citizens be treated equally by the laws.

The 9th Circuit cited that decision more than a dozen times in its ruling Monday, saying that the same principle applied in this case because voters in counties using the punch-card machines would be 2.5 times more likely than voters in California’s other 52 counties to have their votes miscounted.

But Diamond argued that the Supreme Court’s decision was based primarily on the fact that a recount would be conducted by “unguided canvassing boards and volunteers.”

“Left undisturbed, the panel’s decision calls into question every election in every jurisdiction that uses punch-card voting systems, or different voting systems in different counties,” he wrote.

ACLU attorneys countered in their brief that the current problem was unlikely ever to arise again because states across the country are getting rid of punch-card machines. California has pledged to stop using them by the end of this year.

Therefore, the decision is limited to circumstances “that we know as a matter of law will not recur” in California, the brief said.

Further Appeals Likely

The appeals court’s decision correctly applies the Supreme Court’s decision in Bush vs. Gore and “represents an entirely unexceptional application of the law to an entirely exceptional set of circumstances,” the brief said.

The ACLU brief noted that Costa and state officials have said they would appeal to the Supreme Court if they lose before the appeals court.

In the interest of speed, they urged the appeals court judges to forego a rehearing and let the case go directly to the high court.

“Timely and considered review in both courts would be extremely difficult to achieve,” they wrote.

Several experts have predicted that the Supreme Court would let the 9th Circuit decision stand rather than get involved once again in a contentious case involving an election.

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Times staff writer Allison Hoffman contributed to this report.