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Appeals court unanimously reinstates California's Oct. 7 recall vote date

ACLU decides not to appeal

SAN FRANCISCO — A federal appeals court today unanimously reinstated California's Oct. 7 gubernatorial recall election, swiftly rejecting a three-judge panel's decision to put it off for months.

Hours later, the American Civil Liberties Union said it would not appeal the ruling to the U.S. Supreme Court, removing the final legal roadblock to the election just two weeks away.

"With the election just two weeks away, we do not believe we should prolong the uncertainty any longer," Dorothy M. Ehrlich, the ACLU's executive director for Northern California, said at a news conference.

The 11-member panel of the 9th U.S. Circuit Court of Appeals unanimously overturned the Sept. 15 decision of a three-judge panel from the same circuit.

The original panel postponed the election on whether to recall Gov. Gray Davis because six counties would use outdated punch-card ballots that were the subject of the "hanging chads" battle in the 2000 presidential election in Florida. The panel repeatedly cited the Supreme Court's Bush v. Gore decision that effectively decided the 2000 election.

The appeals court reinstated a ruling by a district court judge who had refused to postpone the election. The judges based their decision on the state's constitution, not any precedent set by Bush v. Gore.

"The district court did not abuse its discretion in concluding that plaintiffs will suffer no 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," the ruling said.

Legal scholars had predicted the outcome. A day after the decision delaying the vote, the court announced it would revisit the case with 11 judges — a sign the court was not happy.

The judges left open the possibility of post-election litigation after the votes are in and counted.

They said the ACLU is "legitimately concerned that use of the punch card system will deny the right to vote to some voters who must use that system. At this time it is merely a speculative possibility, however, that any such denial will influence the result of the election."

Davis, a Democrat, has been dogged by his handling of the state's ailing economy. Lt. Gov. Cruz Bustamante is running as a fallback Democratic candidate if voters oust Davis, and Republicans Arnold Schwarzenegger and state Sen. Tom McClintock are among 135 candidates also campaigning for Davis' job.

Some observers thought a delay in the recall vote would have benefited Davis by allowing voter anger over the state's problems to cool, and because many Democrats would be attracted to the polls for the presidential primary if the recall election were moved to March.

But even Davis has sounded fed up in recent days with the lengthy process, and his campaign cheered the court's decision today, as did the other leading Democrats and Republicans in the race.

The 11 judges of the 9th Circuit heard oral arguments in the case Monday afternoon.

Lawyers for Secretary of State Kevin Shelley urged the panel to overturn the three-judge panel. They said the California constitution requires recall elections to be held no later than 80 days after enough signatures of registered voters are gathered. They also said the vote should go on because more than 600,000 absentee ballots had been turned in.

The counties whose voting machinery prompted the litigation are Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano. They represent about 40 percent of the state's registered voters.

Noting the uproar over the 2000 presidential election, the three-judge panel had ruled that an Oct. 7 recall vote would be a "constitutionally infirm election" and that not stopping it now would pave the way for "bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory."

As the appeals court mulled its decision, the GOP congressman who bankrolled the effort urged either McClintock or Schwarzenegger to drop out.

Rep. Darrell Issa said Monday that if both leading GOP candidates remained on the ballot, he would urge voters to vote no on recalling Davis because a yes vote would assure a victory for Bustamante.


On the Net:

9th Circuit: www.ce9.uscourts.gov/