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In a unanimous, unsigned opinion, the 9th U.S. Circuit Court of Appeals today reversed course and allowed the California gubernatorial recall election to proceed. Less than 24 hours after hearing arguments, an 11-judge en banc panel ruled that a lower court did not abuse its discretion in allowing a vote on the recall and on two state ballot initiatives. “Our review is limited and deferential,” the court stressed, adding, “Although plaintiffs have shown a possibility of success on the merits, we cannot say at this stage they have shown a strong likelihood.” The unsigned opinion seemed more concerned with the practical effect of postponing the Oct. 7 election than did the three-judge panel that last week stunned the nation by ordering a halt to the recall drive. In a per curiam decision last week, three 9th Circuit judges had postponed the vote over concern 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. But the en banc panel deferred to U.S. District Judge Stephen Wilson, who had turned down the challenge. “Interference with impending elections is extraordinary � and interference with an election after voting has begun is unprecedented,” the en banc panel wrote. The panel acknowledged that the plaintiffs had “a stronger case on the merits for delaying the initiatives than the recall,” and hinted that post-election litigation could be successful if the vote is close. “At this time, it is merely a speculative possibility, however, that any such denial [of the right to vote] will influence the result of the election,” the court said. “We were delighted,” said Charles Diamond, an attorney for intervenor Ted Costa. “Basically what they said was that the district court had it right. Their job was to review for a clear error of judgment, and there was no error in judgment in allowing the people of California to vote.” California Secretary of State Kevin Shelley, who defended the recall, commended the judges, mostly for deciding the case quickly. “Their unanimous decision this morning eliminates the continuing uncertainty over whether the special election will be held two weeks from today,” Shelley said. “My message as chief election officer is that the confusion is over.” But he would not guarantee that there won’t be problems in those six counties. “There are always problems in any election,” Shelley said.

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