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The Ninth Circuit U.S. Court of Appeals may put off California’s gubernatorial recall and seems likely to postpone two initiatives on the Oct. 7 ballot that accompany the effort to remove Gov. Gray Davis. On Thursday, a three-judge panel battered arguments that the recall and a vote on the controversial “Racial Privacy Initiative” should go forward as planned. Comments by the judges had lawyers for a coalition of minority groups wondering after the argument 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 at a federal courthouse 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, punch-card ballots were due to be phased out prior to 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. “Forty-four percent of the electorate must use a Florida-clone, punch-card machine,” Rosenbaum argued to Judges Harry Pregerson, Sidney Thomas and Richard Paez — none of whom seemed particularly interested in defending the state’s position that its use does not create constitutional problems. Thomas took the lead during the arguments and was vocal in his critiques of Deputy Attorney General Doug Woods’ arguments. 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. A ruling is expected soon. The court could push just the two initiatives off the Oct. 7 ballot, delay the recall, too, or do nothing. The panel picked apart state arguments in a hearing that at times began to look like an effective cross-examination. Thomas brought up a point raised in a brief filed by the Mexican American Legal Defense and Educational Fund. MALDEF argued that including the initiatives on the Oct. 7 ballot denies voters the mandated time to consider the ballot materials. Woods countered that state law requires initiatives to be put on the ballot at the next scheduled election or the next special election. But Thomas countered that the way the law is written doesn’t require initiatives to be voted on during special elections; the phrasing of the law, he noted, is disjunctive. Thomas was essentially asking whether the Ninth Circuit could reach out to decide issues of state electoral law — that the California Supreme Court has refused to consider — in order to conduct the balance-of-hardships test for whether to issue a preliminary injunction. With the door to state law questions effectively opened, Pregerson jumped into the mix. Are there any other state laws that would be relevant besides the election code?, Pregerson asked. At first, Woods didn’t seem to know what Pregerson, among the court’s most liberal members, was getting at. What about state civil rights laws?, Pregerson prodded. “They’re rather broad, aren’t they?” he said. “Some have said they’re broader than � federal civil rights laws.” But before the panel could flesh out the implications of Pregerson’s question, the judges moved on to broader issues that could affect the timing of the recall. One of the state’s best defenses is that the punch-card ballot plaintiffs sat on their rights after entering into a consent decree to do away with the machines by the March 2004 election. In his order, Judge Wilson suggested that since one general election and several local elections have proceeded under the consent decree, the plaintiffs can’t raise the claim now. Rosenbaum and the ACLU counter that preventing the 2002 general election would have had disastrous consequences: California would have had no one in the House of Representatives, a mostly vacant state Legislature and no governor. Postponing the recall, they argue, wouldn’t have as profound an effect. Woods argued that the ACLU is merely upset about the recall. “They’re basically saying once the consent decree was signed, California’s recall provisions were eliminated for two years,” Woods said. “It’s too late. It’s too late in the game to switcheroo.” But Thomas said the NAACP — one of the plaintiffs in Thursday’s case — didn’t participate in the consent decree case. He then said the initiatives were scheduled for a later vote before being moved up, which, he implied, may create a different cause of action not addressed in the prior litigation. “You have a different injury,” Thomas suggested. Paez later chimed in that Judge Wilson’s discussion of the res judicata issue wasn’t critical to his ruling, but was just speculation. With the panel seemingly poised to reach the merits, and Woods facing a barrage of hostile questions, Rosenbaum sat weaving a pen through his fingers, while another lawyer at the plaintiffs’ table absently tapped a finger against a faint smile. Then the panel turned toward the voting machines themselves. The state concedes the machines are obsolete, as it must since it conceded as much in the consent decree. Woods argued that the fact the machines are “obsolete” shouldn’t matter. “The secretary of state has taken extraordinary measures to educate the voters on all the various machines,” Woods said. “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. Pregerson then playfully pointed out that education might not work on tired workers, or workers harried by trying to find their polling place. Then he said those problems might be more of a concern to minority candidates who may have more reason to be tired at the end of the day than whites. “In L.A., if you look around, see who’s working and who isn’t,” Pregerson said, drawing a spasm of laughter from the near-capacity courtroom. While Pregerson’s evidence was anecdotal, Thomas’ was scientific. He cited two studies of punch-card ballots, one from 1975 and the other from 1988. “This is a known problem,” he concluded, adding that even the secretary of state conceded punch cards are “unacceptable.” He “never said they constitute a Voting Rights Act violation,” countered Woods. “He said they’re unacceptable,” Thomas said. “For Californians, he said they’re not good enough,” Woods said. Deflated, Woods concluded by asking the panel to stay its order so the state could appeal to the U.S. Supreme Court if, in fact, it loses. Up stepped Charles Diamond, a lawyer for 62-year-old Sacramento poultry farmer, anti-tax advocate and recall supporter Ted Costa. Since Costa was an intervener in the case, Diamond wasn’t hamstrung by having already conceded a major point in the plaintiffs’ arguments. Diamond argued that the error rates in punch-card ballots shouldn’t be a concern since states have used them for 50 years. But Thomas said the difference here is that some states will use ballots with a lower error rate. Pregerson also had some fun with Diamond. When Diamond said seven justices in Bush v. Gore agreed with him on a certain point, Pregerson said, “I thought it was six.” Diamond suggested he could go over the votes. “Depends on how they voted,” Pregerson said, miming a punch-card vote. Though Woods was nowhere to be found after the hearing, the argument had gone so badly for recall backers that Diamond was asked whether he thought the state was “taking a dive” on the case. “I don’t think they’re taking a dive. I think Secretary [of State Kevin] Shelley is hamstrung by a bad decision by his predecessor,” who entered into the consent decree in the first place, Diamond said. If the panel calls off the recall, Attorney General Bill Lockyer’s office isn’t required to appeal on the secretary of state’s behalf. Nathan Barankin, a spokesman for Lockyer, noted, however, the steps that Woods took to speed an appeal to the U.S. Supreme Court. Other than that, though, Barankin declined to discuss any steps office lawyers might already be taking for further appeals. Even if Lockyer’s lawyers chose not to appeal, recall proponents certainly would, said Thomas Hiltachk, a partner at Sacramento’s Bell, McAndrews, Hiltachk & Davidian, which represents Costa. “I haven’t talked to our client yet, but we’ve come too far to allow the recall election to be postponed,” Hiltachk said. “After 12 lawsuits, what’s one more emergency appeal to the U.S. Supreme [Court]?” Reporter Jeff Chorney contributed to this story.

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