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California Recall Vote Postponed by Federal Appeals Court

Aired September 15, 2003 - 13:25   ET


MILES O'BRIEN, CNN ANCHOR: October 7th is not the day. Hopefully, you just penciled that in on your calendar. A federal appeals court has postponed it, overturning a lower court. And at issue, of course, is the way votes are collected. This takes us back, of course, to the election of 2000, and the disputed votes of Florida, which came down to those punch cards and those hanging or pregnant chads, whatever the case may be. Obviously, the court cognizant of that and did not want to see a replay of that given all that happened there.
CNN's Bob Franken has been tracking this.

Bob, let's talk for just a moment about the conventional wisdom here about a delay. The theory was at the outset that the sooner the better for the likes of Arnold Schwarzenegger, because he had some name recognition already baked in. Is that conventional wisdom still hold, do you think?

BOB FRANKEN, CNN CORRESPONDENT: Well, first of all, anything conventional in this election does not exist. So it's sort of probably par for the course that we would have a development like this.

But the conventional wisdom, such as it is, suggested that the longer people had to think about this, the better it would be Gray Davis, the sitting governor, for precisely the reasons that you suggested, that the luster would be gone. And of course, even in the abridged campaign, we've seen some of that going on.

But now, what you have is a very expensive election, and it reminds you, what if they called an election and nobody showed up? Well, they did call an election, and now the courts are saying that it doesn't meet the constitutional requirements. Of course, the lower court said yes it did, the state's rights trumped any concerns over the conduct of the election.

But these three judges, who by the way were all Democratic appointees -- two by Clinton, one by Jimmy Carter -- unlike the lower court judge who was a Ronald Reagan appointee. These judges, who have a federalist point of view, argued that there were constitutional concerns that were just not being met, and not only as a result were they going to be canceling this election, but the March election.

Now here is the background. The secretary of state in a consent decree had agreed that the punch card machines, which are used in 44 percent of the population -- that is to say the six counties with 44 percent of the population -- they were not acceptable, and they negotiated and finally decided that by next year's March election, they would be removed, and then came the recall election. The lower court judge said that the will of the people of California trumped everything, therefore this election should go forward. Well, these judges have said no, if they're unacceptable for March, they are unacceptable for now, that people's constitutional rights would be violated, they would not have equal protection. Of course, these are all arguments reminisce ebb the Bush- Gore debate that made it to the Supreme Court.

Now comes the tricky part. What happens with the ruling? it is a hugely-important constitutional confrontation between the courts and the state government. Does the supreme court as a result immediately take it up one way or the other? Remembering that the supreme court hasn't even begun its session yet. That, of course, is confused a little bit by the fact that it was an extraordinary hearing just last week on campaign finance. Does the Supreme Court get in the act now? Is there some sort of expedited appeal since it will ultimately reach the Supreme Court? Is there a more normal procedure which would have the hearing, which would have they call an enbonk (ph) hearing, which would go before a larger panel of the judges from the 9th Circuit.

Something else to point out, the 9th Circuit Court of Appeals, as we learned over the years, is the most overturned appeals court. The Supreme Court and the Ninth Circuit are oftentimes diametrically opposed when it comes political philosophy. All of that entering in. There are seven days now that the two sides have to decide what the course of appeal is going to be. The secretary of state has seven more days if the election can proceed, but of course, it puts a huge question mark around everything, and that question mark is raised by the appeals judges, who last week made it clear that they at least had unsettled views about this election, which they've now put on paper, and they've, in effect, stopped things.

O'BRIEN: All right, Bob, I don't want to send you too far out on a limb here, but it seems from where I sit here, it seems very likely this is headed to the Supreme Court, that this is going to be appealed. Correct? Is that safe to say?

FRANKEN: Without a doubt, it's going to be appealed. As a matter of fact, just about everybody said that.

O'BRIEN: OK, good, just wanted to make sure on that.

The other thing you mentioned, you mentioned a March election in there. Clarify that point in my mind, will you?

FRANKEN: Well, there was going to be a March election, next March, 2004, presidential primary, next regularly-scheduled election. But of course California has a variety of propositions that were being discussed. They were, in fact, scheduled for next march. One of them, the controversial one, having to do with the driver's licenses, having to do with getting ethnic identification or various official records. That one is quite controversial as part of the campaign. But the recall...

O'BRIEN: Does this ruling address the March election specifically?


O'BRIEN: It does?

FRANKEN: It addresses the propositions that were on this along with the recall election. If this ruling were to stand up, all of this would be moved to next March.

O'BRIEN: OK. Now, is there any way conceivably that October 7th would become a reality with some sort of hasty appeal process? There's just not enough time, is there?

FRANKEN: Sure there is. Remember, we're talking about...

O'BRIEN: California here.

FRANKEN: We're talking federal judges here, which takes it out of California, and by design, they have a huge amount of power, and the ones who have the most power are the justices of the Supreme Court. They could, in effect, hastily gather and decide to reverse things. The next thing we'll have to find out is if they vote to hear this. You will hear the term "grant sercerori (ph)" or "grant sert (ph)," which means they're taking it on, and, of course, the timing becomes important. There could be some requests for an expedited appeal at the appeal courts level. There are really almost an infinite number of legal possibilities here, and of course what happened today is these appeals judges exercised one of them.

O'BRIEN: Bob Franken, I love it when you speak Latin. Thank you very much. We'll check in with you in just a little bit.


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