Excerpts of Legal Briefs on Both Sides of Argument

* From a brief filed on behalf of Ted Costa, an organizer of the recall campaign, in support of a review of the ruling:

The panel’s decision brushed off the importance of holding elections on time and pursuant to the rules established before an election contest begins. The panel’s decision placed little weight on the state’s interest in holding elections in accordance with its established procedures, free from mid-election changes.... Indeed, the panel went so far as to say that a state does not even have a rational basis to follow its own constitutionally prescribed election schedules. But contrary to the panel’s decision, there is a significant state interest in adhering to the timetable established in California’s Constitution. Prescient wisdom led the drafters of the recall provision to require a quick vote, so that any cloud over an elected official would be resolved promptly. Moreover, there is the strong potential for manipulating the outcome of an election by playing with its timing.... While some may laud the panel for its zeal in defending voting equality in the name of federal supremacy, that unprecedented zeal directly contradicts the Supreme Court’s direction that federal courts facing such circumstances should instead exercise proper judicial restraint.

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The panel’s decision effectively entrenches for at least an additional five months a governor whose recall was petitioned by nearly 2 million eligible voters. It 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. Those problems cannot be tabled for month after month while the governor campaigns full time to keep his job....

Waiting disenfranchises all voters for the next seven months, stripping them of their recall right and potentially protecting the present governor from the people’s will. The state has a compelling interest in avoiding this outcome.

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The panel incorrectly balanced the hardships when it sacrificed the rights of millions of California voters to cast their ballots on Oct. 7 because of the possibility that at most 40,000 votes may not be counted. No party is suggesting that those 40,000 votes don’t matter. But at the same time the law recognizes that as long as mechanical voting systems are imperfect, some votes run the risk of not being counted.

* From a brief by the American Civil Liberties Union, a plaintiff in the lawsuit, opposing further hearings on the issue.

It is rare -- and in California, literally unprecedented -- for the state itself to concede the defects in its voting machinery, both by legally decertifying that machinery as “obsolete, defective, or otherwise unacceptable,” and by acknowledging in its pleadings that punch-card systems are an “old technology” that is “aggressive[ly] [being] eliminate[d] ... statewide.” Thus, this case does not concern jurisdictions within a state insisting upon a variety of technologies for arguably legitimate parochial reasons in a context of deliberately decentralized decision-making within which separate localities might reasonably make their own distinct trade-offs between more accurate (and thus more costly) voting equipment and greater investment in public education or other infrastructural endeavors. Rather, the constitutional violation in this case is the unfortunate consequence of the state’s centralized 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.

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Any fear that the panel’s decision will unleash a wave of garden-variety challenges to nonuniform voting technologies aimed at enjoining state elections is at best farfetched.

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This case involves a type of electoral disparity that will soon be a thing of the past. Punch-card machines, recognized as problematic by the Supreme Court in Bush vs. Gore, are on their way to the dustbin not only in California, but nationwide. Litigation challenging inequalities produced by punch cards has been settled along the identical lines of the Common Cause decree here in several states; the Help America Vote Act has provided federal funds to assist states in replacing punch-card systems; and notwithstanding the virtual certainty that punch-card disparities will be deemed an insufficient basis for enjoining regular elections, it will not be long before all states have entirely discarded this discredited technology. And while the gulf between punch-card machines and other technologies used in California is wide indeed, the record in this case demonstrates without dispute that the error rate among the remaining technologies -- all certified by the secretary as accurate and reliable -- is minuscule, if it exists at all.

* From a declaration filed by Conny B. McCormack, the Los Angeles County registrar of voters.

I have every confidence that the gubernatorial recall election scheduled for Oct. 7, 2003, can and will be administered fairly and effectively in the county of Los Angeles using the punch-card voting system.

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Currently, Los Angeles County does not have a system in place that could handle the capacity required for the March primary to be combined with the recall election. Los Angeles County would have to acquire additional equipment to accommodate the candidates/contests in both elections.

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Should the recall election proceed on Oct. 7, 2003, the ballot will be relatively simple. Voters will have a maximum of four selections to make, and, in Los Angeles County, voters would be using the punch-card system which has been used for voting here for the last 35 years.

* From a brief filed by California Secretary of State Kevin Shelley in support of a review of the ruling.

The panel decision in this case was an untenable departure from settled precedent, this case presents one of those rare circumstances when en banc consideration is necessary to secure or maintain uniformity of decisions. Moreover, en banc consideration is appropriate given the exceptional importance of the question presented.

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Enjoining an election is an extraordinary remedy involving a far-reaching power, which is almost never exercised by federal courts prior to a determination on the merits.