SAN FRANCISCO - A federal appeals court heard arguments yesterday about whether to let California's gubernatorial recall election go forward Oct. 7, sparring with a constitutional scholar on whether the Supreme Court's decision on the 2000 election is grounds for postponing the vote.
Harvard University scholar Laurence Tribe, who argued for the Democrats in the Florida dispute that reached the Supreme Court in 2000, said allowing some counties to use error-prone punch-card ballots will cause thousands of votes to go uncounted.
Last week, a three-judge panel of the 9th U.S. Circuit Court of Appeals postponed the Oct. 7 election, repeatedly noting the Bush vs. Gore ruling, in which the Supreme Court halted the Florida recount because counties were using different standards to read the ballots.
But yesterday, Judges Diarmuid F. O'Scannlain and Alex Kozinski hardly let Tribe get a word out before questioning the lawsuit in the California case, which was brought by the American Civil Liberties Union and other civil rights and minority groups.
"We don't have a Bush vs. Gore problem," Kozinski said, noting that California does have the kinds of standards for ballot-counting that Florida lacked in 2000.
"It's a worse problem," replied Tribe, who is representing the ACLU. He added that under Bush vs. Gore, punch-card ballots "are not lawful to use" no matter how uniformly they are counted.
Arguing for the state, Deputy Attorney General Douglas Woods said trial judge Stephen V. Wilson got the case right in mid-August when he rejected any postponement.
"Today, with this election ongoing, he is even more right," Woods said during the hourlong hearing.
Woods said even if Wilson incorrectly interpreted the law, the public interest still is in holding the election as scheduled Oct. 7.
Kozinski asked Woods: "Do we have discretion, or do we not have discretion" to overturn the trial judge?
"The court does not have discretion," Woods answered.
"I figured you'd say that," Kozinski responded.
There was no indication when the court would rule.
The 11 judges could either uphold the three-judge panel's ruling or overturn the decision, reinstating the Oct. 7 date. The losing side could then appeal to the U.S. Supreme Court.
The judges chosen for the new panel are more conservative than the three who made the original ruling, and some legal scholars said it was likely that the earlier ruling would be overturned.
The election will determine the fate of Gov. Gray Davis, a Democrat who has suffered fallout from voters for his handling of the state's ailing economy. Lt. Gov. Cruz Bustamante is running as a fallback candidate if voters oust Davis, and Republicans Arnold Schwarzenegger and state Sen. Tom McClintock are also campaigning for Davis' job.
The legal dispute centers around six counties that still use the punch-card ballots that caused so much turmoil in Florida in 2000.