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Court rules that recall can go ahead in October
SAN FRANCISCO, California (CNN) -- California's recall vote will go ahead as scheduled on October 7, an 11-judge federal panel ruled Tuesday. The American Civil Liberties Union had filed suit requesting that the ballot be delayed so that punch-card voting machines could be updated. The ACLU has the option to file an appeal with the U.S. Supreme Court. Any emergency appeal filed with the U.S. Supreme Court would go first to Justice Sandra Day O'Connor, the justice who has jurisdiction over appeals from the 9th Circuit. O'Connor could decide to issue a stay to either postpone the election, or allow it to proceed, depending on what the lower court rules or refer the matter to the full Court. Then all nine justices could either respond to the emergency appeal, or decide to do nothing. That would mean the appeals court ruling would stand. The election to replace California Gov. Gray Davis, a Democrat, will first ask voters whether they want to recall him. If they do, the ballot then asks voters which candidate they would like to replace him. Last week, a three-judge panel of the same court, the 9th U.S. Circuit Court of Appeals, ordered the recall election postponed until March, saying the punch-card systems would disadvantage those voters. The six counties, including Los Angeles, the state's largest, have about 44 percent of the state's voters. Elections officials had already been under court order to phase out punch-card balloting by the March primary. During Monday's arguments, Harvard Law School professor Laurence Tribe, an attorney for plaintiff American Civil Liberties Union of Southern California told the panel of the 9th U.S. Circuit Court of Appeals that voters in six counties were in danger of being disenfranchised in the October 7 vote because their counties use punch-card systems that are prone to errors. "We're not counting sheep. We're counting votes," Tribe declared. But several of the justices seemed skeptical of Tribe's claims, and questioned him on why he could not pursue his claims after the election -- if any problems arose. Douglas Woods, the state's deputy attorney general, and a lawyer for the pro-recall group, Rescue California, argued against the postponement, saying the error rate of punch-card systems are comparable to other systems, such as optical-scanners. A poll released Sunday by the Public Policy Institute of California showed support for the recall slipping, although 53 percent of likely voters said they still support recalling Davis. The poll also found Democratic Lt. Gov. Cruz Bustamante and GOP film star Arnold Schwarzenegger running neck-and-neck, though nearly one in five voters has yet to decide on a replacement candidate. The 11 judges were chosen at random from among active judges on the 9th Circuit. They include eight appointed by Democratic presidents and three appointed by Republican presidents. Seven members of the panel were appointed by former President Bill Clinton, who has been in California campaigning with Davis against the recall. Bowing to the strong public interest in the case, the 9th Circuit took the unusual step of allowing Monday's hearing to be televised live. Cameras are rarely allowed in federal courts.
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