U.S. Judges to Hear Suit on Delaying Election

Three federal judges will consider arguments Thursday that they should postpone the Oct. 7 recall election because six California counties, including Los Angeles, will be using punch-card voting machines that officials concede are error-prone.

The suit, which has echoes of the 2000 presidential election, appears to be the last major legal challenge that could halt the election in which Gov. Gray Davis’ future is at stake and 135 California residents are on the ballot to replace him.

Three civil rights organizations are asking the U.S. 9th Circuit Court of Appeals to block the election for up to five months. The six counties, which represent 44% of state voters in the 2000 election, face a court-ordered March 1 deadline to replace their punch-card machines with newer, more accurate equipment.

Those are the same kinds of machines -- infamous for their “hanging chads” -- that created problems in Florida in the last presidential election. Flawed ballots there generated a six-week legal battle that culminated in a U.S. Supreme Court decision, Bush vs. Gore, halting a statewide recount.

In that case, the Supreme Court said a lack of uniform standards among Florida’s counties created the possibility that ballots in certain parts of the state would have a greater likelihood of being counted, violating the Constitution’s equal protection clause.

“Having once granted the right to vote on equal terms, the state may not, by later arbitrary or disparate treatment, value one person’s vote over that of another,” the Supreme Court majority said.

The plaintiffs in the current case -- the NAACP, the Southern Christian Leadership Conference and the Southwest Voter Registration Education Project -- raise a similar argument, saying that the use of error-plagued punch-card machines in some counties but not others means voters in different counties will not be treated equally.

Legal analysts, including law professors Daniel Lowenstein of UCLA Law School and Leslie Jacobs of McGeorge Law School, say the plaintiffs face an uphill battle, pointing out that courts rarely delay elections.

In order to obtain a preliminary injunction, plaintiffs must show that they are likely to prevail in the case and that they will be irreparably harmed unless the court acts in their favor.

On Aug. 20, U.S. District Judge Stephen V. Wilson in Los Angeles rejected the plaintiffs’ request that he postpone the election, saying they had met neither of those burdens. Their attorneys now have to convince the appeals court that Wilson committed clear legal error -- a tough standard.

Wilson emphasized that the recall election date is mandated under the California Constitution, and that “delaying the election for half a year ... undoubtedly works against the public interest implicit in a recall election.”

But the plaintiffs have a chance in part because the case will be heard by three liberal judges: Harry Pregerson, 79, of Woodland Hills, appointed by President Carter; Richard A. Paez, 56, of Pasadena, appointed by President Clinton; and Sidney R. Thomas, 50, of Billings, Mont., also a Clinton appointee.

“You couldn’t write a better script,” said Loyola University law professor Richard L. Hasen, an election law expert.

“You could have a 9th Circuit panel using Bush vs. Gore” to halt the recall election and then the Supreme Court would be asked to step in, as it was in Florida.

“It would be an ironic turn of events,” said Hasen, who wrote a friend-of-the-court brief contending that the logic of Bush vs. Gore dictates that the election be postponed.

State officials acknowledge that the machines have problems, but maintain that a fair election can be held.

The California attorney general’s brief counters that state officials are “taking extraordinary steps aimed at ensuring that all voters are able to cast their votes effectively on all of the voting systems.”

Those steps include announcements and pamphlets distributed to voters.

The plaintiffs, represented by the American Civil Liberties Union and law professors Laurence Tribe of Harvard and Erwin Chemerinsky of USC, also say that the counties using punch-card systems have greater minority populations than counties using other systems. They say this disproportionately disenfranchises voters or dilutes their votes on the basis of race, in violation of the federal Voting Rights Act.

If the election is held Oct. 7, more than 40,000 votes will not be counted because of punch-card errors, according to a study by UC Berkeley political scientist Henry Brady, who is an expert witness for the plaintiffs. Brady said the highest percentages of voided ballots would be in minority neighborhoods.

The California secretary of State’s office and Sacramento resident Ted Costa, who launched the recall when he began circulating petitions earlier this year, are urging the 9th Circuit to affirm Wilson’s ruling and permit the election to go forward.

But the plaintiffs maintain that holding the election under these circumstances would constitute a violation of the federal Voting Rights Act and the Constitution’s guarantee that all citizens are entitled to equal protection of the law.

They rely on data about problems with the punch-card machines and the Bush vs. Gore precedent.

California Secretary of State Kevin Shelley, the defendant in the suit, does not defend the machines.

“Punch-card voting systems are old technology more prone to voter error than are newer systems,” the brief filed for Shelley by the California attorney general’s office acknowledges. “Both the present and the prior secretary of state have been acutely aware of this reality, and have taken aggressive steps to eliminate the use of punch-card machines statewide.”

Last year, Shelley’s predecessor, Bill Jones, settled an ACLU suit filed in the wake of the 2000 election controversy by agreeing to replace the punch-card machines used in Los Angeles and five other California counties -- Mendocino, Sacramento, San Diego, Santa Clara and Solano -- by March 2004.

When he approved that settlement, Wilson said the evidence showed that those 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.”

But a few weeks ago, Wilson said the fact that the problems with those machines would not be remedied by Oct. 7 was insufficient reason to halt the election. He said the suit was unlikely to succeed for a variety of reasons, so no injunction was warranted.

He said the state can clearly show a rational basis for using the punch-card machines in this election because “alternative technologies will not be available in several of the affected counties in time” for the election.

The plaintiffs take issue with Wilson’s conclusion and the legal standard he used.

They assert that under Bush vs. Gore, the actions of state officials should be held to a higher standard than the one Wilson cited.

Moreover, they say that their case is even stronger than Bush vs. Gore because “here there is no doubt that the punch-card voting machines will not correctly count and report every voter’s vote, whereas in Florida there was only speculation that this might occur” had the recount proceeded.

The plaintiffs’ attorneys acknowledge that there is “a strong interest in prompt resolution of the governor’s status.” But they say the case boils down to speed versus accuracy, and quote the Bush vs. Gore ruling: “[A] desire for speed is not a general excuse for ignoring equal protection guarantees.”