Court to Reconsider Delay of Recall Vote

Times Staff Writer

The U.S. 9th Circuit Court of Appeals will reconsider its decision postponing the Oct. 7 recall election, the court announced Friday, enhancing the prospect that the election will go ahead as scheduled.

The second round of arguments in the case will be heard in San Francisco on Monday -- one week after the original decision -- by a panel of 11 appeals court judges. The new panel is far more conservative than the group of three that ordered the election postponed. The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

“You know who’s on the panel, right? Do you think it’s going to have much of a chance of surviving? I wouldn’t bet on it,” Judge Harry Pregerson said in an interview.

The hearing will be open to live television coverage, the court announced -- a rare move reflecting the extraordinary level of interest in the case.

The court’s original decision was made in a case brought by the American Civil Liberties Union. The plaintiffs challenged the schedule for the election on the grounds that the use of error-prone punch-card voting machines in Los Angeles and five other urban counties would make the election constitutionally suspect.


The decision to reconsider the case drew praise from candidates across the ideological spectrum.

Gov. Gray Davis, who on Monday had been cheered by news of the postponement, seemed less enamored of the delay by Friday.

After a campaign rally at a community center in South Los Angeles with former Vice President Al Gore, where he heard the news, Davis said: “I believe we will beat the recall on Oct. 7, and my attitude is, let’s just get it over with. Let’s just have the election on Oct. 7, put this recall behind us so we can get on with governing the state of California. The momentum is clearly growing against the recall.”

Arnold Schwarzenegger, the leading Republican in the race to replace Davis, had no public events Friday. Aides said he was engaged in one of a series of issue seminars with his campaign’s policy chief, Paul Miner. A campaign official said earlier in the week that Schwarzenegger also would be filming additional television commercials.

In a statement released by the campaign, Schwarzenegger said “the 9th Circuit made the right decision today.”

“This election doesn’t begin on Oct. 7 -- it’s occurring right now,” the statement said. “Hundreds of thousands of Californians have already participated in this election by casting absentee ballots.”

The other prominent Republican in the race, state Sen. Tom McClintock of Thousand Oaks, who was campaigning in Riverside when he heard the news, said he had been “shocked by the temerity of the first judgment” and was pleased that the court was reconsidering.

Like the original panel of three, the new panel was determined by random lottery, except for one member, Chief Judge Mary M. Schroeder of Phoenix, who presides over all cases in which an expanded panel reconsiders one of the court’s decisions.

None of the court’s most liberal judges is among the 10 drawn by lot, but two of its staunchest conservatives are: Diarmuid O’Scannlain of Portland, Ore., appointed by President Reagan, and Andrew Kleinfeld of Anchorage, an appointee of President George H.W. Bush. Also on the panel is Alex Kozinski of Pasadena, another Reagan appointee who is the court’s leading libertarian.

Schroeder was appointed by President Carter. The remaining seven judges are appointees of President Clinton. Five of those are generally considered to be among Clinton’s more conservative appointees, including one Republican, Richard Tallman of Washington.

“If you were the ACLU,” which represents the plaintiffs in this case, “you would not think the gods had smiled on you a second time,” said Stanford University law professor Pamela Karlan, a voting rights expert.

New York University law professor Stephen Gillers said, “The ACLU has a steeper mountain to climb” this time.

Los Angeles attorney Charles P. Diamond, who represents Ted Costa, the Sacramento man who launched the recall effort and who argued against the delay, said the panel of jurists “ranges the spectrum of political affiliation, ideology and seniority but all these judges have one common trait -- they are all of extraordinarily sound judgment. I think that will cut significantly in our favor.”

Mark Rosenbaum, legal director of the ACLU of Southern California, said he was disappointed that the court had granted a rehearing, but added that he was looking forward to presenting his argument.

“In this state, and in this country -- especially given that these races are a statistical dead heat -- voters have had enough of elections decided by machines that, in a few months, you could buy at garage sales,” he said.

The court, following its usual procedures, did not disclose how many judges had voted to rehear the case. Under court rules, reconsideration required a majority of the judges who participated in the vote.

Three of the court’s 26 active judges had stepped aside because of potential conflicts of interest, meaning that at least 12 must have voted to order the new hearing.

The choosing of a judge for the new panel is no indication of how that judge voted.

The judges who did not take part are Stephen Reinhardt, whose wife, Ramona Ripston, is executive director of the ACLU of Southern California; Kim M. Wardlaw, who used to be a partner at O’Melveny & Myers, the law firm where Diamond works; and Marsha Berzon, who once was a partner in a law firm that was involved in an earlier case challenging the use of punch-card voting machines.

The court gave each side in the case 30 minutes to argue its case Monday, bringing on a dispute between Diamond and the California attorney general’s office, which represents Secretary of State Kevin Shelley. The secretary of state is the defendant in the case, but Costa received permission earlier in the litigation to join the case.

Diamond filed a motion asking the court to allow him to have most of the 30 minutes. In the argument in front of the three-judge panel, the two sides split the time.

In his motion, Diamond said that he had “attempted in good faith to negotiate an equal division of time,” but that the attorney general’s office had insisted that it get all 30 minutes, permitting Diamond to speak if the court gives additional time.

The attorney general’s office, he complained, was focusing its arguments on technical legal issues, rather than “the important constitutional and public policy issues” in the case.

Atty. Gen. Bill Lockyer’s spokesman, Nathan Barankin, attempted to downplay the disagreement, saying that, from the start of the case, the attorney general’s office and Diamond had argued different aspects. “That’s what happens most of the time” when you have lawyers for different parties on the same side of a case, Barankin said.

Diamond needs to ask the court to give him additional time, Barankin said, adding that was the way the process had worked in front of the earlier panel.

Two years ago, the ACLU and Bill Jones, a Republican who was then the secretary of state, settled a suit over punch-card machines, with the state agreeing to eliminate them in time for the primary election on March 2.

Lawyers for the state say that, under that agreement, election officials should be allowed to use punch-card machines on Oct. 7.

The date of the recall was set under state law, which calls for recalls to be voted on within 80 days of the certification of enough signatures to put the measure before voters.

But Monday’s appeals court panel, made up of Pregerson and Judges Richard A. Paez and Sidney R. Thomas, rejected that argument, saying the state’s interest in a timely election had to yield to the U.S. Constitution’s insistence that all citizens be treated equally under the law.

The judges ruled that the use of punch-card machines by six California counties while 52 others use a different system would leave people in some counties with a much greater chance that machine errors would nullify their votes.

That, they said, would violate the principles set down by the U.S. Supreme Court’s decision in Bush vs. Gore, the case that sealed Bush’s victory in the 2000 presidential election.

“Judge Paez, Judge Thomas and I -- we did the right thing,” Pregerson said. “We’re there to protect people’s rights under the equal protection clause of the Constitution, no matter who’s involved, and a lot of people don’t like it. That’s their problem, not mine.”

Times staff writer Joe Mathews contributed to this report.