California recall on the docket: the two sides' legal arguments

Monday's televised hearing will explore Bush v. Gore and the potential for setting a precedent.

California's recall election is now in the hands of 11 federal appeals court judges set to hear the legal dispute in a rare, nationally televised oral argument session Monday.

The San Francisco-based appeals court could quickly end the showdown and permit the recall election to proceed as originally planned on Oct. 7.

Or if the judges agree with an earlier three-judge panel postponing the special election, their decision would set the stage for possible intervention - and even more high drama - at the US Supreme Court.

Opponents of the original timing of the Oct. 7 vote say outdated punch-card technology threatens to disenfranchise up to 40,000 voters. Supporters of the recall counter that 375,000 absentee ballots have already been cast.

The California case arises at a time of concern among Americans about the political neutrality of life- appointed federal judges. It is a skepticism fed in part by a judicial confirmation process often held hostage to political considerations in the US Senate. And it is a skepticism arising from the actions of judges themselves, most notably the US Supreme Court's intervention in Florida in a way that seemed to guarantee victory to George W. Bush three years ago.

Any involvement by the nation's highest court in the California recall case would almost certainly force the justices once again to confront - and perhaps explain in greater detail - the controversial decision in Bush v. Gore, legal analysts say. It is a chapter in Supreme Court history the justices apparently want to put behind them.

Since delivering the decision in December 2000, no member of the Supreme Court has cited Bush v. Gore to support a legal position in any other case, says Vikram Amar, a law professor at the University of California's Hastings College of Law in San Francisco. "I don't think it would be a happy day that they have to go back and relive [Bush v. Gore]," he says.

Some legal analysts say it now looks as if the justices may not have to. The 11-member panel of the Ninth US Circuit Court of Appeals selected to hear the recall case consists of three judges appointed by Republican presidents and eight named by Democrats, but five of the Democratic appointees are described as moderates who may vote to allow the recall election to go forward as scheduled.

Analysts warn that such predictions are always dangerous, particularly in highly charged cases like the recall dispute.

At issue is whether the state's planned use of punch-card voting machines would disenfranchise voters in certain counties and thus violate equal-protection principles of the US Constitution.

A three-judge panel also from the Ninth Circuit ruled a week ago that it would, citing as its primary precedent Bush v. Gore.

The reference to Bush v. Gore has been attacked as unsupportable by conservatives and hailed as a delicious irony by liberals. Briefs filed with the court suggest the lawyers will spend a portion of their time trying to prove or disprove the relevance of Bush v. Gore to the California recall election.

Bush v. Gore "strongly supports" the panel's holding, writes Mark Rosenbaum of the American Civil Liberties Union in his brief to the court seeking to delay the Oct. 7 vote.

Charles Diamond's brief backing the Oct. 7 vote counters that the panel adopted a "clearly erroneous" reading of Bush v. Gore.

Another central issue in the case will likely be the potential national implications of a ruling adopting the reasoning of the earlier three-judge panel.

Mr. Diamond says that any state that uses different types of voting machines will be subject to lawsuits attacking their voting methods as unequal and thus unconstitutional.

"Dark constitutional clouds loom over every state deploying more than one [voting] system," he writes. "Only eight states have adopted a single, state-wide voting technology."

Mr. Rosenbaum says such claims are "far-fetched" because all states are moving away from punch-card voting technology toward more reliable methods. He adds that such judicial intervention would not be permitted in regular elections (as opposed to special recall elections) so the California situation is likely to be rare.

"It is virtually inconceivable that the [earlier] panel's order will provide a basis for enjoining any future election," Rosenbaum says.

A brief filed on behalf of California Secretary of State Kevin Shelley, a Democrat, says his office is working through voter education efforts to mitigate the risks associated with punch-card voting.

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