Union Tribune

September 16, 2003

Whether U.S. Supreme Court will rule on recall is uncertain

By DANA WILKIE
COPLEY NEWS SERVICE

WASHINGTON Should the U.S. Supreme Court intervene in yesterday's federal court decision to postpone California's Oct. 7 recall election, the high court would have to decide if its infamous "hanging chad" ruling in the 2000 presidential election applies to the Golden State.

On the one hand, the Florida ruling demonstrated that the Supreme Court is willing to stop election activities that involve "error-prone" balloting, as some fear may happen should California move ahead with the election to recall Gov. Gray Davis in three weeks.

On the other, there are key differences between the two states that could persuade the court to let the recall go forward, experts said.

Whether the Supreme Court actually rules on the matter remains uncertain. California Secretary of State Kevin Shelley has a week to appeal yesterday's decision by the 9th U.S. Circuit Court of Appeals to postpone the recall election until counties can replace outmoded punch-card ballot machines.

Proponents of the recall vowed to file their own appeal.

The high court has a vested interest in accepting the case, said Edward Lazarus, author of a coming book on the history of the Supreme Court.

"The (Florida decision) was the most important case that the court handed down in a long time, and one that questioned the court's integrity," Lazarus said. "The court may feel an institutional responsibility to speak to the meaning of (its Florida decision) as part of its own role in American political life."

In yesterday's ruling, the 9th Circuit agreed with the American Civil Liberties Union that the machines still used in six California counties including San Diego and Los Angeles counties are prone to error. The counties are under court order to replace the machines by the March 2004 primary election, but the machines won't be ready in time for the Oct. 7 special election.

Repeatedly, the 9th Circuit judges said the California case was similar to what happened in Florida during the 2000 presidential election.

The results of the presidential election were delayed during 36 days of recounts and court battles. Finally, the Supreme Court intervened and ordered a stop to the vote recounting. The 5-4 ruling which essentially handed the presidency to Republican George W. Bush said that because votes were being counted differently across Florida counties, this violated the constitutional principle of affording each citizen an "equal" vote.

Yesterday's ruling in California represents the first major application of that ruling.

"The issue is likely to be whether (the Florida ruling) set a precedent that the 9th Circuit was obliged to follow in (the recall) case," said William Norris, a former 9th Circuit judge who now practices law in Los Angeles. "And the broad question is whether (the Florida case) set a precedent for federal court intervention in state elections at all."

The Supreme Court was harshly criticized for agreeing to hear the Florida dispute rather than leave the issue to the Florida Supreme Court.

It is unclear whether the high court would conclude that the 9th Circuit's decision was a proper application of its 2000 ruling. While it may seem the voting issues in Florida and California are identical, some experts said the two cases differ.

The Supreme Court was careful to emphasize that its 2000 ruling applied only to Florida. The Florida case involved halting a recount of votes because of the potential for "human error." California's case involves halting an election because of the potential for error by punch-card ballot machines.

Some experts predicted the Supreme Court may be less concerned about machines, which are expected to have a certain error rate.

"Machine errors are different than human errors," said Vikram Amar, a Hastings College of Law professor who is following the recall closely. "In Florida, we had different people in different counties reading ballots in different ways. The manual manipulation (of ballots) was part of what the Supreme Court was worried about. That's not the case in California."

Whether the Supreme Court decides to hear the California case and how it rules if it does will be watched closely for signs of political motivation. After the conservative-leaning court ruled in the Florida recount, Democrats said the justices abused their power to ensure that Bush won the White House.

"Precisely because the court intervened on behalf of a Republican (Bush) in Florida, they might not want to intervene on behalf of Republicans (who want to replace Democrat Davis) in California," Amar said.

But because an appeal is likely to come from Secretary of State Shelley, who is a Democrat, that may provide the court "a bit of cover," Amar said.

The high court does not return to work until October, and would have to agree to an extraordinary session to review California's recall case.