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It may not be quite the slam-dunk some experts had predicted, but the 9th U.S. Circuit Court of Appeals sounded ready Monday to put the state’s recall election back on the Oct. 7 ballot. Less clear is what it will do with the two initiatives postponed last week along with the recall. A decision on both issues is expected this morning. Though an 11-judge en banc panel seemed to disagree on many points with the three judges who last week postponed the election, it raised concerns that could delay the vote on other grounds. And judges openly asked about the possibility of postponing two state initiatives also scheduled for an Oct. 7 vote while leaving the recall on track. The key figure in the hearing was Judge Alex Kozinski. He first attempted to debunk the American Civil Liberties Union’s analysis that 40,000 votes will be miscounted and later tried to get a state lawyer to admit that U.S. District Judge Stephen Wilson — whose ruling is under review — botched one of the claims. “He sort of missed it on the Voting Rights Act, right?” Kozinski asked Deputy Attorney General Douglas Woods. Woods defended Wilson’s ruling, saying he interpreted the law correctly. “Today, with this election ongoing, he is even more right,” Woods said. Woods argued that with millions of dollars already spent and hundreds of thousands of absentee ballots already returned, the court should allow the election to proceed. Most judges seemed inclined to agree, but at least two had questions about whether votes on Proposition 54, dubbed the “Racial Privacy Initiative,” and another initiative should be postponed. Both were moved up from a March vote once the Oct. 7 recall date was set. “What’s the practical effect of a split decision?” asked Judge M. Margaret McKeown. In a per curiam decision last week, three 9th Circuit judges postponed the vote over concerns that punch cards have a higher error rate than newer machines used in the rest of the state. Punch cards are still in use in six counties, comprising 44 percent of the population, despite a consent decree that called them obsolete. University of California, Berkeley professor Henry Brady, an expert for the ACLU, said as many as 40,000 votes in those six, minority-heavy counties could be miscounted, creating the potential for a recount disaster to rival Florida’s in the 2000 presidential election. But Kozinski poked holes in Brady’s analysis, saying “he does not take the process to the end.” Some of those 40,000 votes, Kozinski said, can be recovered through hand counts. And unlike Florida, California has uniform manual recount procedures. “So we don’t have a Bush v. Gore problem,” Kozinski said, citing a case that was mentioned 13 times in the three-judge panel’s opinion. “No, it’s a worse problem,” said Harvard Law School professor Laurence Tribe, because election officials now know beforehand that miscounts will be higher in some counties. “I think we’re fooling ourselves if we imagine that California has outdistanced Florida in a fundamental way,” said Tribe, who was brought in to argue part of the ACLU’s case. Tribe also worked on behalf of Al Gore in the legal snarl following the 2000 election. Even if Kozinski didn’t see a Bush v. Gore problem, it was on the minds of other judges. At one point, Judge Johnnie Rawlinson — who had tough questions for both sides — asked, “Doesn’t Bush v. Gore instruct us that one person’s vote cannot be counted more than another’s?” ACLU lawyer Mark Rosenbaum was set to argue the Voting Rights Act claim, which the three-judge panel did not touch on. But the judges asked him different questions instead, saving the Voting Rights Act issue for the other side. Two of the court’s more conservative judges — Andrew Kleinfeld and Diarmuid O’Scannlain — asked whether the three-judge panel should have applied a higher “abuse of discretion” review standard. But most of the judges sounded ready to tackle the case on the merits. Several judges were troubled by the fact that hundreds of thousands of votes have already been cast by absentee ballot and wanted to balance that against the potential miscounts attributed to punch-card ballots. But Rosenbaum said people could always vote again in March. “Is it inconvenient? Of course it’s inconvenient. Is that disenfranchisement? No,” Rosenbaum said. Rosenbaum got more traction, though, when he argued that an Oct. 7 vote on the two ballot measures violates state laws. Woods countered that Secretary of State Kevin Shelley had no choice — under state law, he had to move the votes up to the next scheduled election. McKeown, for one, seemed concerned that Judge Wilson treated his analysis of the recall vote and propositions similarly. “How can it be the same — when you don’t give California voters the rights that the law provides them?” McKeown asked. Judge A. Wallace Tashima suggested that the public interest in having the recall vote as soon as possible versus the votes on the propositions — which wouldn’t take effect for more than a year — was different. “Doesn’t that require a separate analysis? One on the recall and one on the initiatives?” Tashima said. Other judges on the panel included Chief Judge Mary Schroeder and Judges Barry Silverman, Susan Graber, Ronald Gould and Richard Tallman. Three of the 9th Circuit’s courtrooms were filled with observers Monday, while camera trucks lined 7th Street. Everyone from Shelley to Attorney General Bill Lockyer to recall advocate Rep. Darrell Issa was there. Perhaps the atmosphere was on Rosenbaum’s mind when he concluded his argument by saying that this was the “strongest case there has ever been in this circus — in this circuit.” All of the judges laughed. Most of the work defending punch cards themselves was given over to Charles Diamond, a lawyer for intervenor and recall proponent Ted Costa. Diamond pointed out a letter submitted to the court last week after it asked for views on whether it should rehear the controversial case. In it, former Secretary of State Bill Jones defended punch cards, saying they are being phased out by the March election only because of newer technologies — not because of inherent constitutional problems. At this point Kozinski stepped back into the fray using a hypothetical from one of the six counties in question. “What if L.A. County said, ‘We’re only going to count every other vote?’” Kozinski said. “How much of a non-counting of ballots are counties allowed to do before they run into constitutional problems?” Kozinski seemed to be searching for a line to drop — at what error rate is the Constitution implicated? Ten percent? Fifty percent? “Fifty percent — I think we’d want to take a searching look at that,” said Diamond, a partner at O’Melveny & Myers whose firm is not working on the case. “I feel like Abraham!” exclaimed Kozinski, unable to elicit a hard number from Diamond. With Kozinski asking questions on both sides of the case, it wasn’t clear where he was headed. But Diamond said he wasn’t worried. “Judge Kozinski loves to play with lawyers the way a cat likes to play with a mouse,” Diamond said.

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