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Just when you thought it was safe to leave the polls, political lawyers are warning of a new onslaught of lawsuits that might further delay what could already be a long vote count in today’s California gubernatorial recall election. “With all the players, I would be astounded if there weren’t some kind of litigation,” said Robin Johansen of Remcho, Johansen & Purcell. The San Leandro, Calif., firm represented California Gov. Gray Davis in his failed attempt to have the state Supreme Court delay the recall. Like her colleagues, Johansen is keeping her own strategy under wraps and would not say whether Davis himself plans to ask a court to save his job — if it comes to that. Johansen’s case was among 20 challenges filed during the recall race. Only one, by the American Civil Liberties Union, made it very far; it was tossed by an en banc panel of the 9th U.S. Circuit Court of Appeals. But Johansen said she believes the 9th Circuit’s final written decision “contains seeds to encourage litigation after Oct. 7,” an opinion shared by other Democratic lawyers. But people aren’t just talking about the possibility of renewing the ACLU’s allegations about punch card voting machines. Other potential issues include claims based on changes that counties had to make in order to conduct today’s election, such as consolidating polling places. And then there’s the potential for a recount, a process that wouldn’t necessarily spawn lawsuits but that would certainly be monitored by both Democrat and Republican lawyers. Any voter can demand a recount, but whoever asks has to pay all the costs associated with it. There hasn’t been a recount in a statewide election in California in recent memory. Both sides agree that the closer the margin of victory, the more likely it is there’ll be lawsuits. And though much of the speculation has focused on Democrat-backed suits — probably because polls show candidate Arnold Schwarzenegger is favored to replace Davis — Republicans could file, too. Last week, recall proponent Ted Costa said he was prepared to go to court if it looked like Secretary of State Kevin Shelley was taking too long to certify the election. Shelley has 39 days to approve the voting, and Costa and others are worried Davis will make a series of last-minute judicial and other appointments if he’s forced to leave office. Already some people interpret Davis’ recent rush of judicial appointments, especially to state appellate courts, which have no vacancies for the first time in months, as last-minute bench packing. “There’s going to be some very good chances of creative litigation,” said Chip Nielsen of Sacramento political firm Nielsen, Merksamer, Parrinello, Mueller & Naylor. Nielsen’s firm has not been involved with any of the recall challenges but represents the committee urging people to vote yes on Proposition 53, which, along with the more controversial Proposition 54, shares the ballot with the recall. Thomas Hiltachk, who represented Costa in intervening in the ACLU case, said he wasn’t going to speculate on what he might do after today. “I’m expecting to win. I’m expecting the election to run smoothly,” said Hiltachk of Sacramento’s Bell, McAndrews, Hiltachk & Davidian, which also represents the California Republican Party. Besides getting ready to respond in court, both political parties also will be closely monitoring today’s voting — intelligence-gathering that eventually could find its way into a suit. The Democratic National Committee is raising $100,000 to pay for post-election “legal work,” said party spokesman Bob Mulholland. That money is not intended to fund litigation. It’s for paying lawyers, organizers and others who monitor problems at polls and, if necessary, a recount. Mulholland agrees that there won’t be any litigation unless “it’s extremely close.” Hiltachk was cynical about Democratic election-day observers. “They’re not sending out monitors to watch for problems. They’re sending out monitors to create problems, and we’re not going to be a part of that,” he said. Republicans will be ready for trouble. Eric Grant of Sacramento’s Sweeney & Grant, which filed the earliest recall litigation, said he was participating in a program organized by the California Republican Party to have lawyers available on Election Day to observe contentious situations and get courts to intervene, if necessary. As for legal challenges that might come Wednesday, such as a revival of the 9th Circuit case, Southwest Voter Registration Education Project v. Shelley, 03-56498, Hiltachk said he disagrees with Johansen. The Republican lawyer said the only thing the opinion did was open up the possibility of a federal Voting Rights Act claim if intentional discrimination was shown. Hiltachk said the ACLU presented no evidence of that, and he has no reason to believe such a claim is coming. For its part, the ACLU is not looking to revive its lawsuit, said Alan Schlosser, legal director for the group’s Northern California chapter. Even so, Mark Rosenbaum, the ACLU Southern California legal director who argued in front of the 9th Circuit, sides with Johansen’s interpretation of the 9th Circuit ruling. The court allowed the election today mostly because it doesn’t like to stop things once voting has started, Rosenbaum said. He said he doesn’t believe the court reached a final conclusion on the Voting Rights Act’s ramifications on the recall. But he agreed that the chances of the ACLU bringing the same claim don’t look good. “To revive this case, the margin of victory would have to be less than the margin of error of [the punch card] machines,” Rosenbaum said. ACLU lawyers submitted evidence that put that margin at about 40,000 votes statewide. Rosenbaum predicted Davis would lose by more than that.

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