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Two initiatives on California’s Oct. 7 ballot will likely be postponed, while the gubernatorial recall itself may be put off as well by the Ninth Circuit U.S. Court of Appeals. On Thursday, a three-judge panel battered the state’s position that the recall and the vote on the controversial “Racial Privacy Initiative” should go forward as planned. The surprising hearing had lawyers for a coalition of minority groups wondering afterward whether it could have possibly gone any better. “They were fearless questions that got to the heart of the constitutional, legal and practical problems,” declared ACLU lawyer Mark Rosenbaum to a bank of reporters after the nearly two-hour hearing in Pasadena. The case is an appeal of U.S. District Judge Stephen Wilson’s refusal to halt the unprecedented election. Several groups claimed that six California counties that still use punch-card ballots similar to those used in the 2000 Florida election debacle will mean votes in those counties, which have a heavy concentration of minorities, will be unfairly counted. Under a consent decree with the state, the ballots were due to be phased out before the March 2004 general election. But the sudden recall attempt of Gov. Gray Davis means some counties will still be using punch cards Oct. 7. None of the judges — Harry Pregerson, Sidney Thomas and Richard Paez — seemed persuaded by Deputy Attorney General Doug Woods’ argument that the secretary of state has taken extraordinary measures to educate the voters on all the various machines. Led by Thomas, the panel picked apart the state’s arguments in a hearing that at times began to sound like an effective cross-examination. “Do you have any studies that education will overcome any problems?” Thomas asked. No, was Woods’ reply. “Rather than cancel an election, it’s better to try to remedy the problem,” he argued. “We have to accept your assertion and hope, is that what you’re saying?” Pregerson asked. It was also clear that the procedural hurdles the plaintiffs must clear to get to a ruling on the merits were not going to be a major factor. By the time he was done, Woods was asking the panel to stay its order so the state could appeal to the Supreme Court if, in fact, the state loses.

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