Ripples of a recall delay
California awaits an appeal of the court ruling. Any scenario may boost Gray Davis.
OAKLAND, CALIF. — Whatever happens next in California's recall, the United States Ninth Circuit Court of Appeals dealt a severe blow to any Republican hope of claiming the governor's office.
From the beginning, pro- recall forces had hoped to avoid a March election, fearing that the recall's energy might dissipate during an eight-month campaign. Yet that date looks increasingly likely with the court's Monday decision to bar California from holding any election until punch-card ballots are eliminated.
What's more, even if the ruling is overturned, it will have given Democrats something they have so far largely lacked: a rallying cry. They have long sought to connect the recall to what they see as Republican ploys to undermine fair elections - particularly the 2000 presidential race. Should the United States Supreme Court again intervene, the dots might prove easier to connect.
At most, it could prove a galvanizing issue for left-leaning voters in an election that many analysts believe will be decided by turnout. At least, it will make the jobs of those looking to oust Gov. Gray Davis much more difficult.
"This election has always been about anger," says Jack Pitney, a political scientist at Claremont McKenna College in southern California. "Either way, the anger factor now favors [Governor] Davis."
In the prism of possibilities presented in this oddest of elections, Monday's shift was among the most surprising. Overturning a lower court's ruling, the Ninth Circuit Court of Appeals in San Francisco decided that the punch-card ballots used by six of California's most populous counties are "so flawed ... that 40,000 voters who travel to the polls ... will not have their vote counted."
These are the same machines that led to "hanging chads" and the 2000 presidential election's Florida recount. They are the same machines that California agreed to phase out by next March, citing concerns that the same sorts of errors and confusion could happen here.
The ninth Circuit Court cited that state mandate, as well as the US Supreme Court's decision in resolving the 2000 recount that "using different standards for counting votes in different counties" is unconstitutional. Arguing that voters in the six punch-card counties - which include as many as 40 percent of the state's voters - would unfairly be prone to having their votes tossed out, the court prohibits California from holding a statewide election until the new systems are operational.
For the defendants, one option is to appeal to the full Ninth Circuit; Monday's decision was made by a panel of only three of the judges. Another is to appeal directly to the Supreme Court. At press time, California's secretary of state, Kevin Shelley, was expected to decide whether he would appeal the ruling with the appeals court or go directly to the Supreme Court.
It is a logical tack - and perhaps the one that holds the most promise. Widely viewed as the most liberal federal appeals court, the Ninth also has a history of being overturned by the Supreme Court on major issues. But even if recall proponents are successful, it is a strategy that involves some danger.
If the Supreme Court takes the appeal and splits along ideological lines - as it did in 2000 - the justices "are going to bring a political fury upon themselves," says Bruce Cain, a political scientist at the University of California at Berkeley. "The more partisan it becomes, the more it benefits Gray Davis [given the Democrats' 44-to-35 percent advantage here]. It will be a rallying point for the Democrats."
Some experts doubt, however, that the Supreme Court will take the case after the criticism it received in 2000. "That kind of crisis does not exist this time," notes Nathaniel Persily, a professor at the University of Pennsylvania Law School in Philadelphia.
For now, campaigns are going ahead as if the Oct. 7 date were still in play. But if the Ninth Circuit Courts' ruling stands, California will be facing six months more of recall campaigning, and candidates would have to retool their plans.
The prospect is hardly what Republicans wanted. Davis has already begun making up ground as the anger that drove the recall fades. After football season, Thanksgiving, New Year's, and Valentine's Day, it may have evaporated entirely. "Politically, we tend to have a short attention span," says Tim Hodson, a political scientist at California State University in Sacramento.
Worse for recall backers, a March election would coincide with the California presidential primary, when Democratic turnout would probably be unusually high. "A March ballot has some really attractive aspects," says Democratic political consultant Bill Carrick in Los Angeles.
Clearly, a delay would seem to hurt Republican candidate Tom McClintock most. Though his combative attitude and frank talk have given him momentum in recent days, the arch-conservative might be hard-pressed to maintain it amid the increased scrutiny of a longer election campaign.
Moreover, he simply might run out of cash. Likewise, the tightwire act of Cruz Bustamante's "no on recall, yes on Bustamante" campaign might lose some of its urgency if Davis continues to recover in the polls.
Of the big three names on the second half of the ballot, only Arnold Schwarzenegger could get some benefit from a delay. Pundits agree that his best shot is in October, but the extra time might drive Mr. McClintock from the race and give the neophyte Mr. Schwarzenegger a chance to brush up on policy.
"If the election goes to March it's like an extension on an exam," says Dr. Pitney. "We could end up with Conan the Wonk."