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Court Rules Calif. Recall Can Proceed

By Peter Zuckerman, Contributing Writer

The 9th U.S. Circuit Court of Appeals voted unanimously yesterday to reinstate the Oct. 7 date of the California gubernatorial recall, reversing last week’s decision issued by a three-judge panel of the same circuit.

Despite the efforts of Tyler Professor of Constitutional Law Laurence H. Tribe ’62, who argued for postponement before the court on Monday, the group of 11 judges supported an earlier ruling handed down by a district court in favor of the scheduled date.

Representing the American Civil Liberties Union (ACLU) of California, Tribe failed to persuade the court that an election held using punch card ballot machines—which must be replaced by March 2004—would be unlawful.

Rather, the judges reasoned that the ballot machines to be used by six counties would not cause “hardship that outweighs the stake of the State of California and its citizens in having this election go forward as planned and as required by the California Constitution.”

Tribe, who also argued unsuccessfully for civil rights groups in the 2000 Bush v. Gore case, was unavailable for comment on the court’s decision.

The ACLU expressed its disappointment with the ruling in a statement released yesterday:

“We remain firmly convinced that using voting equipment officially declared by the state to be obsolete, in a number of counties with a high concentration of minority voters, violates the equal protection clause of the Fourteenth Amendment and the Voting Rights Act.”

Harvard Law School professor Einer R. Elhauge, who published an op-ed against postponing the recall in the Wall Street Journal last week, said he strongly supported the 9th Circuit’s decision yesterday. Like the court, Elhauge did not deem the much maligned voting machines a serious threat to a fair election.

“It’s not at all clear that punch card ballots produce more errors than other systems, especially if you take into account the fact that they would be supplemented by a manual recount. Optical scanners lead to errors too,” he said.

Moreover, according to Elhauge, the use of punch card ballots in California will not cause the problems encountered by Florida officials during the 2000 presidential election.

“In Florida, the problem wasn’t that different counties were using different systems,” he said. “There was a lack of standards to how to do the recount. In California, there’s one standard.”

Beneficial Professor of Law Charles Fried also said he approved of the 9th Circuit’s reasoning. While Fried acknowledged the possibility of electoral problems in the California recall, he argued that there was insufficient evidence that they would cause significant harm.

“I think the two courts [the district and circuit courts] got it right,” he said. “There has not been enough showing of harm.”

Unlike the ruling of the district court, the decision reached by the 9th Circuit will most likely not come under the review of a higher court, in this case the Supreme Court.

With the scheduled election date only two weeks away, the ACLU has decided to accept yesterday’s decision.

And, according to Fried, the Supreme Court is not eager to get involved in the case.

“I would be astonished if they didn’t simply deny all involvement,” he said.

Although the outcome of the recall may now be in doubt, the date of the proceedings is not. On Tuesday, Oct. 7, Californians will be given the opportunity to cast a vote for governor—and 40 percent of them will use a punch card.

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