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Will the wild California recall meet its match at the woolly Ninth Circuit U.S. Court of Appeals? Few had given Southwest Voter Registration Education Project v. Shelley, 03-56498, much of a chance. Not because of poor arguments by the American Civil Liberties Union, but because no one could imagine the Ninth Circuit stopping the recall roller coaster in mid-ride. But the announcement this week of a left-leaning panel chaired by arguably the Ninth Circuit’s most liberal member has people wondering if the fun is just getting started. Mix together cowboy hat-wearing Harry Pregerson, hanging chads, a ballot 13 times as long as the one used in the 2000 Florida debacle, and a chance for the Ninth Circuit to kick Bush v. Gore back to the Supreme Court, and you have a Sept. 11 hearing that could halt the Oct. 7 vote to recall Gov. Gray Davis. The appeal stems from U.S. District Judge Stephen Wilson’s refusal to halt the election. The ACLU is arguing that with soon-to-be-obsolete punch card systems still in effect in six counties, some votes — particularly minority votes — will not be counted with the same precision as others. “They certainly have the guts required” to halt the election, said Boalt Hall School of Law professor Stephen Barnett, who nonetheless doubts the Ninth Circuit will stand in the way. Pregerson is the ex-Marine who recently declared that he could not, “in good conscience,” go along with the U.S. Supreme Court’s jurisprudence on California’s Three Strikes law. He’ll be joined by judges Sidney Thomas and Richard Paez, both appointees of President Clinton. Paez’s nomination languished for years after conservatives tagged him as too liberal. Thomas, a soft-spoken Montanan, proved he is just as fearless as Pregerson this week when he reversed the death sentences of more than 100 prisoners throughout the West. “The panel that they drew is a pretty favorable panel from the point of view of the ACLU,” said Vikram Amar, a Hastings College of the Law professor. “Pretty good panel,” agreed Rory Little, a Hastings professor who once headed the Northern District U.S. attorney’s office’s appellate division. The plaintiffs have an uphill climb, though. They have to show that Wilson abused his discretion in denying a preliminary injunction. Both sides agree that punch card systems have higher rates of error than more modern voting machines; under a consent decree, they’re to be eliminated prior to the March 2004 election. But then the economy tanked, electricity prices exploded, the electorate soured on Davis, and everyone and their cousin started polishing their political skills. The ACLU’s suit alleges that in an election with 135 candidates, tens of thousands of potential miscounts could swing the outcome. Wilson not only rejected the ACLU’s claims but said plaintiffs had sat on their rights — an argument Secretary of State Kevin Shelley has now adopted as his primary defense. Several elections have passed since the consent decree without objections from the plaintiffs. “It’s a very strong opinion,” Barnett said. “It’s going to be tough,” Amar added. “I wouldn’t bet on a reversal.” But long shots have never scared the Ninth Circuit. Neither has the Supreme Court. The case could well turn on Bush v. Gore, the oft-derided decision that put an end to the 2000 presidential election. “I don’t think our case depends on Bush v. Gore, but the issue is whether the Supreme Court meant what it said [when it ruled] that all votes should be counted,” said Mark Rosenbaum, the ACLU lawyer who will argue the case. If the issue isn’t addressed prior to an election that looks to be close, he added, “the likelihood of a Florida-like situation would be increased.” To help get over the high procedural hurdle and bring a win home, the ACLU has enlisted the help of two constitutional law professors. On the briefs are University of Southern California’s Erwin Chemerinsky and Harvard Law School’s Laurence Tribe — the same man who helped brief Al Gore’s case. No matter who wins, it is possible — likely, even — that the case will be appealed to the U.S. Supreme Court. That would put Bush v. Gore right back in front of the court, giving it a chance to revisit an unhappy chapter in its history. “Nobody thinks they would touch it,” Amar said. Which means Pregerson and his posse could have the last word. Or not. “It’ll go en banc if there’s anything unusual about it,” Little said. “The liberal view is not the one that’s going to prevail.” But anything can happen in the Ninth Circuit, and it usually does. Ask Michael Newdow, the atheist who got the Ninth Circuit to strike the words “under God” from the Pledge of Allegiance. Or William Gerber, the California inmate who won the right at least for awhile to artificially inseminate his wife via Federal Express. “You know what?” Amar said, “Like always, I wouldn’t rule anything out. I’d be surprised but not shocked.”

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