U.S. Judge May Put Recall Vote on Hold

A federal judge Friday warned that he may put the Oct. 7 recall election on hold because four California counties have not complied with a key civil rights law governing voting procedures.

U.S. District Judge Jeremy D. Fogel gave officials two weeks to resolve the problem and, in the meantime, ordered Monterey County, where the case was filed, not to send any absentee ballots to people living overseas.

The plaintiffs contend that minority voters might be discriminated against because there would be fewer polling places than in a regular election.

If the issue is not resolved by Aug. 29, the judge said, he could order a complete halt to preparations for the vote -- a move that state officials said would force a postponement of the election.

The order marks the first time a court has intervened in the recall process. Several other legal challenges to the recall have failed so far, but more are pending, including a suit scheduled to be heard Monday in federal court in Los Angeles.

“This court is extremely reluctant to intervene in or disrupt the electoral process unless it clearly is compelled to do so,” Fogel said in an order late Friday. “At the same time, permitting voting

Although Fogel’s decision directly affects only Monterey County, the entire election is at stake because the state cannot have an election without all counties participating.

The decision worried voting officials, who already have been warning that they have barely enough time to organize the election before the balloting is scheduled to begin.

“At this point, we don’t want to delay this election,” said Steve Weir, the registrar in Contra Costa County who has served as an informal coordinator for recall preparations for county registrars throughout the state.

“If you stop us now, it just means we have less time to prepare for Oct. 7 and less of a chance to have a successful election.”

The case involves a portion of the Voting Rights Act that requires state and local governments in some parts of the country to receive permission from the U.S. Justice Department before changing any voting procedures -- a requirement known as pre-clearance.

To grant pre-clearance, Justice Department lawyers must determine that the proposed voting changes will not have the effect of discriminating against minority voters.

In California, Monterey, Kings, Merced and Yuba counties are subject to the pre-clearance requirement because of low voter turnout and discrimination in previous elections.

Campaign officials for Gov. Gray Davis said they were pleased with the judge’s order but that they would continue to prepare for the election.

“Since taxpayers will be forced to spend more than $70 million on this special election -- money that would be better spent on education, health care and public safety -- it is imperative to preserve voters’ rights to a fair and equitable election,” said Peter Ragone, Davis’ campaign communications director.

Richie Ross, chief strategist for Lt. Gov. Cruz Bustamante’s campaign, also praised the ruling, saying the protections in the Voting Rights Act are more important than the recall.

“People were killed to win the Voting Rights Act of 1965,” he said. “Nothing can interfere with the Voting Rights Act.”

The act, first passed by Congress in 1965, was initially designed to safeguard the rights of blacks in the South. Portions of it have been extended over the years to cover other parts of the country with high minority populations and histories that suggest discrimination at the ballot box.

A spokesman for Bill Simon Jr.’s campaign said “the will of the people should not be thwarted by a federal judge.”

“If you’re speaking of voters’ rights, you have to think about the rights of the nearly 2 million people who signed the recall petition to see this election go forward,” spokesman K.B. Forbes said.

Lawyers for the Mexican American Legal Defense and Educational Fund and Lawyers’ Committee for Civil Rights brought the case against Monterey County, saying the decision to reduce the number of polling places there from the usual 190 to 86 for the recall vote required pre-clearance. Voting officials in many counties have reduced the number of polling places for the recall vote, saying that doing so is the only way to organize an election on short notice.

State officials concede they need federal approval. Last week, they asked the Justice Department to approve the election plan for the four counties.

During a hearing before Fogel on Friday morning, Deputy Atty. Gen. Leslie Lopez said federal officials are reviewing the matter on an expedited basis but have refused to provide a date for making a decision. The Justice Department has promised the issue would be resolved “well before” Oct. 7, she said.

But that may not be soon enough, Fogel suggested. Absentee voting is set to begin Sept. 8, and if the federal government fails to approve election plans before voting starts, then “we’ve got a real serious problem to deal with,” Fogel said during the two-hour hearing.

Clearance by the Justice Department “could come at any time,” said Hallye Jordan, a spokeswoman for Atty. Gen. Bill Lockyer. “If we don’t get pre-clearance by the next hearing, I am sure the judge will take different action,” she said.

Lawyers for the civil rights groups said in their lawsuits that the law requires that no election preparations even take place until after the federal government has approved them.

They asked Fogel to put all preparations for the election on hold until after the pre-clearance issue was resolved, but state officials told the judge that doing so would make it impossible to have an election Oct. 7.

Fogel appeared to be hesitant to go that far, saying he was “exceedingly reluctant” to stop “the biggest political event in California in recent memory” if there is any chance that the federal government will clear the election before the voting starts. “The actual harm doesn’t occur until the vote occurs,” Fogel said.

His decision to block just the overseas voting was a kind of compromise. The order, which affects only Monterey County for the next two weeks, will further reduce the time for mailing ballots to overseas voters, but Fogel said he had “no other alternative.”

The lawsuit being heard in federal court in Los Angeles challenges the use of punch-card voting machines in the election. The American Civil Liberties Union of Southern California is seeking to have the election postponed until the March 4 presidential primary, when new voting machines will be available.

Six urban counties, including Los Angeles, are scheduled to use the old-style punch card machines Oct. 7, which the lawyers argue are more error-prone than other voting methods.

U.S. District Judge Stephen V. Wilson, a Reagan appointee who will preside over Monday’s hearing, agreed that the punch-card machines are error-prone. He presided over a case that resulted in a promise by state officials to get rid of the old machines by the March 2004 primary.

But the attorney general, in a brief filed Friday, asked the judge not to block the election. State officials would undertake “unprecedented efforts to educate voters in punch-card counties of the potential problems with these systems, with the aim of assisting voters to cast their ballots properly and have their votes counted,” Lockyer said.

“Engaging in these efforts -- rather than postponing the constitutionally mandated election -- is the appropriate way of addressing the concerns raised in the plaintiffs’ complaint.”