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Judges question delay of recall vote

Trio on panel seem inclined to allow California election

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Harvard law professor Laurence Tribe speaks to reporters outside the 9th U.S. Circuit Court of Appeals chambers. He endured tough questioning from the 11-judge panel.

Harvard law professor Laurence Tribe speaks to reporters outside the 9th U.S. Circuit Court of Appeals chambers. He endured tough questioning from the 11-judge panel.

Noah Berger, Associated Press

Though both sides were peppered with difficult questions at Monday's argument in the California recall case, those posed to the civil rights groups who seek to delay the election were more concrete and direct, suggesting that at least the more conservative judges on the 11-judge panel are inclined to allow the election to take place next month.

The questions posed to the other side were often abstract and hypothetical, seemingly asked out of curiosity rather than practical necessity.

Even some of the civil rights groups' more likely allies on the panel of the court, the 9th U.S. Circuit Court of Appeals, seemed to be looking for a narrow, technical and inoffensive way to allow the election to go forward. These judges were particularly interested in whether a settlement in an earlier lawsuit that required punch-card balloting to be phased out by March might forbid the civil rights groups from pursuing their case now because some of them were also parties to that suit.

Laurence Tribe, the Harvard Law School professor familiar to election law aficionados for representing the losing side in the Supreme Court's decision in Bush v. Gore in 2000, was one of two lawyers who argued for the civil rights groups. He had barely started when the panel's three most conservative members asked him a series of questions that did not bode well for his clients.

Judge Diarmuid F. O'Scannlain, who was appointed by President Ronald Reagan, asked why the court should not defer to Judge Stephen V. Wilson of U.S. District Court in Los Angeles, who had allowed the election to go forward in a decision last month.

Judge Alex Kozinski, another Reagan appointee, challenged the factual premise of the civil rights groups' arguments, saying that a study they had relied on to show discrimination against some voters was inadequate.

And Judge Andrew J. Kleinfeld, who was appointed by the first President Bush, quoted from the Supreme Court's decision in Bush v. Gore in an attempt to demonstrate that the case was not only of no help to the civil rights groups but required that the election go forward.

A three-judge panel of the appeals court reversed Wilson's decision last Monday, holding that the disproportionate error rates associated with the punch-card balloting used in six large California counties required a delay, particularly because those counties have large minority populations.

But the decision of the full court on Friday to have an 11-judge panel rehear the case wiped out the smaller panel's decision, and the argument on Monday was treated as an appeal from Wilson's ruling. Appellate courts ordinarily review with substantial deference decisions about requests for injunctions like the one Wilson denied.

Mark D. Rosenbaum, a lawyer with the ACLU Foundation of Southern California, also argued for the civil rights groups. He spent much of his argument addressing Kozinski's practical questions about whether some punch-card ballots might be spoiled intentionally, or, if not, whether some mistakes might be correctable in a manual recount.

Kozinski, who is a conservative with a libertarian streak, was active in the first half of the argument and dominant in the second. He posed difficult but hypothetical questions to Douglas J. Woods, a deputy attorney general, and Charles P. Diamond, who represents a proponent of the recall, Ted Costa.

"What if L.A. County said, 'We're only going to count every other vote'?" he asked Diamond, who suggested that a showing of intentional discrimination should be required before a court stepped in.

Kozinski seemed to collect his thinking toward the end of the argument.

"There comes a point," he said to Diamond, "where if the machinery is defective enough in counting votes even your client would agree that there's an equal protection violation."

This was more a statement than a question. What little Kozinski betrayed about whether that point had been reached in this case suggested he believed it had not.

If the court follows its usual practices, the senior judge in the majority will assign the writing of the decision, which is expected to be prompt. Chief Judge Mary M. Schroeder, a Carter appointee, said little on Monday beyond telling lawyers when their time was up.

Schroeder is, according to Rory K. Little, a professor at Hastings College of the Law in San Francisco "very liberal, though she tries to hide it." At the same time, she has expressed concerns about the reputation of the 9th Circuit for making decisions that are out of step with those of other federal appeals courts and with the U.S. Supreme Court.

If she is in dissent, Kozinski, as the next most senior judge, would assign the opinion, and many legal experts predicted he would choose to write it himself. He is known for the care he takes in fashioning his decisions.

"Writing a precedential opinion," he wrote in a 2001 decision, "involves much more than deciding who wins and who loses in a particular case. It is a solemn judicial act that sets the course of the law for hundreds or thousands of litigants and potential litigants. When properly done, it is an exacting and extremely time-consuming task."

He has said he sometimes writes 70 or 80 drafts.

In this case, the court is expected to decide the case in days. It must do so if the Supreme Court is to have any opportunity to weigh in before the Oct. 7 election date.