Court Dates Approach for Challenges to Recall
A federal judge may yet delay the Oct. 7 recall election as the difficulties facing election officials receive more attention and more lawsuits are filed, but the prospect remains a longshot, legal experts said.
A handful of federal challenges to the election are pending, some of them before judges appointed by Democrats. More lawsuits are anticipated if election officials miss deadlines or produce confusing or misleading ballots.
In two lawsuits based on the federal Voting Rights Act, a federal judge in San Jose on Friday will be asked to stop election preparations in Monterey County, where voting is under the oversight of the federal government. Such a move could delay the vote.
On Monday, a federal judge in Los Angeles will hear a lawsuit to stop election officials in six urban counties, including Los Angeles, from using punch-card ballots. That suit seeks to postpone the election until March, when new voting machines are to be in place.
Fredric D. Woocher, an expert in election law, said persuading a federal judge to delay an election would be a challenge.
“For any judge, it is a pretty big step to put the halt on an election that is going forward,” Woocher said. “Even a liberal judge who might be inclined to do it is going to have to have some pretty good statutory or constitutional grounds to base it on.”
But the legal prospects may change dramatically as election officials grapple with putting together a lengthy ballot in little time, Woocher said. As of Wednesday, 135 candidates had qualified for the ballot.
“The more we hear about disasters in the making and the inability of election officials to deal with them, the more the cases strengthen ... the more likely a judge might feel that [delay] is the right solution,” he said.
With the rejection of five state challenges by the California Supreme Court last week, the odds of a court intervening dropped significantly, legal analysts said.
“Before the California Supreme Court turned everything down, I thought it was 50-50,” said Loyola law professor Richard L. Hasen. “But now the chances are considerably less because state law questions are essentially gone for preelection review.”
Delays Still Possible
Still, with several suits pending and more possible, Hasen said: “We are not out of the woods yet.”
Even if federal district judges reject the lawsuits, plaintiffs could still prevail before the U.S. 9th Circuit Court of Appeals.
“In front of the right set of judges, it could delay the recall,” Hasen said.
UC Berkeley emeritus law professor Stephen Barnett said federal judges would be loath to delay the recall election for six months based on what he called speculation that voting rights will be violated.
“It’s a long time for a circus to run,” Barnett said. But like other legal analysts, he cautioned that no one can count out intervention by unelected federal judges, who have lifetime tenure. “You certainly can never tell,” he said.
Among the strongest federal challenges is the lawsuit by the American Civil Liberties Union of Southern California over the adequacy of voting machines in Los Angeles and other urban counties. The ACLU will ask a judge on Monday for an order to postpone the election.
Without the order, “the election could be nothing more than a sham, given the universal recognition that punch-card machines are failed voting mechanisms,” wrote Mark D. Rosenbaum, legal director for the ACLU.
U.S. District Judge Stephen V. Wilson, a Reagan appointee who is considered a moderate, will hear the case. Wilson already knows the issue well because he presided over a successful ACLU suit to get rid of the old machines.
In approving a consent degree to remove the punch-card system, Wilson wrote last year that the evidence showed the old machines “suffered from an error rate nearly double that of other polling technologies, and risked continuing effectively to disenfranchise thousands of voters as a result.”
The counties agreed to stop using the punch-card ballots by the March primary, which at the time was expected to be the next statewide election.
State Atty. Gen. Bill Lockyer is supposed to respond to the ACLU’s allegations by Friday, and Wilson may rule in the case as early as Monday.
Two other challenges may produce rulings on Friday. Lawyers in the San Jose case want U.S. District Judge Jeremy Fogel, a highly regarded Clinton appointee, to delay the election until federal officials approve changes in the way the election will be held, including the consolidation of precincts.
The lawsuit says the changes violate a section of the federal Voting Rights Act that requires four counties -- Monterey, Yuba, Kings and Merced -- to get approval from the U.S. Justice Department or a federal judge when election procedures are revised.
The counties are under the election oversight of the federal government because of low voter turnout and suspected discriminatory practices in the past. In a similar lawsuit, lawyers for the Mexican American Legal Defense and Educational Fund are also citing the voting rights law in asking Fogel to remove Proposition 54, which prevents public agencies from collecting and using most kinds of racial and ethnic data, from the Oct. 7 ballot.
In Los Angeles, a case filed by civil rights lawyer Stephen Yagman contends that voters should not elect a successor candidate because the lieutenant governor takes office if Gov. Gray Davis is recalled.
U.S. District Judge Lourdes Baird, appointed by former President Bush, will hear arguments in that case Friday. The state Supreme Court rejected a similar argument last week.