Ballot issue could haunt state after vote

Oakland Tribune, Sep 24, 2003 by David Kravets, Associated Press

SAN FRANCISCO -- California's on-again recall election could become embroiled in more litigation after the Oct. 7 vote. If the tally is close, a Florida-style recount, complete with court battles over hanging chads and dimpled ballots, could repeat itself in California.

Legal experts say Tuesday's federal appellate court ruling leaves the door open to litigation if there is a close vote on the recall between top vote-getters among the 135 replacement candidates or on the two ballot initiatives.

"You could face a Bush v. Gore in California all over again with the recount issue," said Los Angeles lawyer Edward Lazarus, who in 1998 wrote "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."

The reason: Six California counties, which make up more than 40 percent of the state's registered voters, will use error-prone punch- card ballots similar to the ones used in Florida. The ACLU sued to postpone the election, saying as many as

40,000 votes would be discarded because of the machines, which are being discarded by the March 2 statewide primary.

If fewer than 50 percent of the voters say "no" to the recall of Gov. Gray Davis, the next governor could be elected by a very small margin, since there are so many candidates running to replace him.

"If it's an extremely close election and if there are a lot of uncounted ballots from these punch-card machines, then I could see some squabbling over what kind of a manual recount we should have," said Vikram Amar, a University of California, Hastings College of the Law, scholar who has closely followed the case.

California's recall has been embroiled in litigation almost from the day Secretary of State Kevin Shelley announced July 23 that enough signatures of registered voters had been collected to force a recall. Only the ACLU's lawsuit survived until now.

On Sept. 15, a three-judge panel of the 9th U.S. Circuit Court of Appeals, agreeing with the ACLU, postponed the election until the March 2 statewide primary.

Noting the uproar over the 2000 presidential election, the panel ruled that rushing into a vote before punch-card ballot machines can be replaced in California would pave the way for "bitter, postelection litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory."

An 11-judge panel from the same circuit negated that decision Tuesday, saying unanimously that it's more important that the vote proceed according to the timing requirements of California's Constitution. Also, more than 600,000 absentee ballots have been mailed in, and the counties have spent millions preparing for the vote, so the court was loathe to stop it now.

However, the larger panel left open the possibility of more litigation once the election is over.

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," the court said Tuesday. "At this time it is merely a speculative possibility, however, that any such denial will influence the result of the election."

The larger panel rarely addressed Bush v. Gore, the case in which the U.S. Supreme Court stopped Florida's presidential recount. The Supreme Court blocked it because Florida lacked uniform standards for recounting the votes -- such as what to do with "hanging chads."

That lack of uniformity violated the Equal Protection Clause, because not all votes were being treated equally, the Supreme Court reasoned.

In postponing California's recall, the three-judge appeals panel said the same Bush v. Gore theory applied to California, since voters using punch-card ballot machines with an error rate as high as 3 percent would be on unequal footing with voters using more modern election systems.

California elections officials say they have specific standards for recounting punch-card votes with dimpled ballots and hanging chads, unlike Florida in 2000.

Its method is spelled out in a 60-page state pamphlet published in 1990, with such guidance as: "a punch shall be considered valid when the paper chip (chad) of a voting response punch position is completely removed from the card or is broken on three sides while still attached to the card by no more than two corners."

Ballots in which the machine punched two candidates or none at all are tossed out, the pamphlet says.

The ACLU said declined to appeal to the Supreme Court so that voters would know for certain the election would go forward in two weeks. But the group said it might not hesitate to challenge the results.

"We all hope this election goes well," said Alan Schlosser, an ACLU legal director. "If problems arise, we'll have to cross that bridge when we get to it."

The case is Southwest Voter Registration Education Project v. Shelley, 03-56498.

Editors: David Kravets has been covering state and federal courts for a decade.