Calif. recall may get second hearing

Times Staff Writers

The turmoil and uncertainty surrounding California's recall election appears likely to last at least a week, legal observers said Tuesday, as the U.S. 9th Circuit Court of Appeals sought arguments on whether it should reconsider an order postponing the vote until March.

As the judges pondered what to do next, voters expressed widespread cynicism about the motives of a three-judge panel that ordered the postponement Monday.

Despite the ruling, candidates continued their campaigning. Gov. Gray Davis appeared with Jesse Jackson in San Francisco, Arnold Schwarzenegger spoke at a forum in Los Angeles and state Sen. Tom McClintock went on talk radio. Davis, Schwarzenegger and Lt. Gov. Cruz Bustamante kept raising money at a brisk pace -- each collected hundreds of thousands of dollars Monday -- while McClintock's campaign appeared to be struggling for contributions.

Meanwhile, frustrated election officials expressed fresh outrage over the taxpayer dollars that would be wasted if the postponement stands and they are forced to scrap their Oct. 7 election plans. Interviews throughout the state suggest that California and its 58 counties have already spent at least half of the $66 million that the recall is expected to cost.

"We're taking away from other programs to pay for this," said Mischelle Townsend, Riverside County's registrar. "It's unconscionable."

Unconscionable, pitiful, stupid -- there was little mincing of words as people pondered the chain of unlikely events that have sent California's political establishment on a never-ending Tilt-a-Whirl.

"It's all kind of like a soap opera," said Fred Strame, a San Francisco financial consultant who was perusing a newspaper in the sun before lunch Tuesday. "It's one stupid thing after another, or like an accident that you want to watch."

Tuesday morning, the 9th Circuit issued an order saying it had asked all the parties in the recall case to file briefs by 2 p.m. today setting forth their views about whether the court should rehear the case with a larger panel of 11 judges -- an "en banc" panel. The order was signed by Judge Sidney R. Thomas, who is the court's en banc coordinator, and one of the authors of Monday's ruling.

Under 9th Circuit rules, any of the court's judges has the power to request such a hearing, even before any of the parties in the case makes such a request.

Secretary of State Kevin Shelley said he would ask the panel to reverse Monday's decision, permitting the election to go forward as planned Oct. 7.

In a statement issued by his office, Shelley said he believed it was "in everyone's best interest that this case be heard swiftly and considered thoroughly, so the court can resolve these legal issues with the finality that the voters expect and deserve."

The court rarely grants rehearings. Last year, the 9th Circuit issued 5,000 decisions on the merits of cases. The court received 1,039 requests for en banc hearings and granted 17, according to court officials.

Although there is normally a lengthy period for the judges to exchange legal memos on whether to rehear a case, court observers said the 9th Circuit could move very fast -- for judges at least -- in a case involving such urgency.

The observers said they thought the court could complete a vote by Friday on whether to rehear the case. If a majority of the judges voting decides to reconsider, a hearing could be held as soon as Monday and a ruling could be rendered by the middle of next week, the observers said.

Court officials have issued no formal schedule yet.

In Sacramento, the man who launched the recall drive to oust Davis told reporters that his lawyers would file a brief with the 9th Circuit, asking that the matter be sent directly to the U.S. Supreme Court.

Ted Costa, a longtime anti-tax activist who drafted the recall petition, called the decision to put the election on hold an outrage -- "the kind of thing that happens in South American countries before they get rid of elections altogether."

He also predicted that the decision would have "a tremendous chilling effect" on anyone who wanted to use the recall process and who then would have to "go and kiss the rings of three judges over in the court of appeal."

But Costa's lawyer, Charles P. Diamond of Los Angeles, said he and Costa "were not on the same page." Told of his client's remarks, he said he thought he had a good chance of getting the ruling reversed by the 9th Circuit.

Lawyers for the American Civil Liberties Union, which sought the postponement, also said they would be filing a brief -- but theirs would be urging the 9th Circuit not to rehear the case.

ACLU attorney Ben Wizner said he thought that the three-judge panel that ordered the election postponed "got it exactly right." The decision, he said, described "substantial deprivations of constitutional rights" if the election went ahead as scheduled.

The three 9th Circuit judges, all appointed by Democratic presidents, ruled Monday that the election would violate the U.S. Constitution because voters in six counties would be using punch-card ballots that the secretary of state has declared to be obsolete and error prone. Voters in those counties would have a substantial risk that their votes would not be counted and would, as a result, not be treated the same way as voters in the other 52 counties, the judges said.

The fact that the six counties, which include Los Angeles, have a disproportionate share of the state's minority voters exacerbated the potential for the election to be unfair, the judges said.

Interviews with voters on Tuesday revealed a deep well of disgust, even among some who oppose the recall.

"I think they should do it and get it over with," said Bessie Hadley of Long Beach as she watched her sister shop for wigs in a shop in Compton. She and the half a dozen or so customers at Naomi Wigs seemed weary of the political story that won't go away.

Hadley didn't support the idea of the recall. "I feel the election has already been done and done fairly and Davis won it," she said. But neither did she like the uncertainty unleashed by the court's decision.

"It's a bunch of hogwash, what's going on now," she said.

In Orange County, it wasn't hard to find angry Republicans.

"It's pitiful," said John Speakman, who was taking a morning coffee break in Costa Mesa. Speakman, a regional vice president of a major fast-food chain visiting from Clovis, in the San Joaquin Valley, called the postponement "a Democratic ploy to interfere with the will of California voters."

Speakman described himself as a Republican who is considering voting for McClintock (R-Thousand Oaks) to replace Davis. Leaning forward in a wire chair as the sun beat down on his salt-and-pepper hair and iced mocha drink, Speakman could not contain his irritation with the court's action and Davis. He said delaying the election would only strengthen his desire to oust the governor from office.

"This guy is going out," he said, "and I'm not going to stop hounding him until he's gone."

In nearby Huntington Beach, a trio of Republican motorcyclists licked vanilla yogurt cones near their Harley-Davidsons and shook their heads in dismay.

"The people have asked for this election, and they should be allowed to do it without Democrats trying to erase the momentum," said Jack Hanshaw, 69, of Garden Grove, speaking for the three.

What emerged from many conversations was a tarnished view of the court system, which some attributed to the Supreme Court's decision to stop the vote-counting in Florida following the 2000 presidential election. That decision, Bush vs. Gore, laid the legal foundation for the appellate court ruling to postpone the California election.

John Wyman, 34, a massage therapist in Ventura, said he was a Democrat who moved to California from Virginia a year ago. He denounced the recall as "a mean-spirited Republican tactic" to grab power.

"I don't know much about Gray Davis," he said. "Even my liberal friends say he's very much a sellout to special interests. But he seems OK to me. And I think we ought to let the guy finish his term."

While he opposes the recall, Wyman said he thought the liberal politics of the 9th Circuit played a role in the court's decision. "It's hard to say anymore, since the 2000 presidential election, what's political and what's judicial," he said.

It wasn't easy to find people who supported the court, but they were out there. Steve Thomas, a curator at the UC Riverside/California Museum of Photography, said he did not believe the court's ruling was politically motivated.

"I think they just examined the evidence and it was obvious -- some counties, some voting districts have better voting equipment than others," he said. "I don't think it was a liberal decision. I think it was a decision based on the facts, black and white."

Thomas, 52, of Rancho Cucamonga, a member of the Green Party, said the sponsor of the recall initiative, U.S. Rep. Darrell Issa (R-Vista), "should have to pay for this whole thing."

The extra cost of delaying the election would fall mostly on counties. The potential of so much wasted money is especially painful in a tight budget year in which many California counties have been forced to reduce public safety, health, and other crucial services.

"We're piling cost upon cost, with no clear plan on the horizon for us to recover it," said Brad Clark, the Alameda County registrar.

Los Angeles County, which currently lacks a voting system capable of handling both the recall and primary elections on a single March ballot, hopes to present its concerns to the 9th District court in a friend-of-the-court brief.

"It seems to me this information somehow needs to get before the court," said County Supervisor Zev Yaroslavsky.

For the court to hold a hearing on the recall, a majority of its 26 active judges must ordinarily vote in favor. On Tuesday afternoon, however, the court issued an order saying that two of those judges, Stephen R. Reinhardt, who is considered perhaps the most liberal jurist on the court, and Kim M. Wardlaw, another Democratic appointee, had recused themselves from participating in the case.

Reinhardt, appointed by President Carter, is married to Ramona Ripston, executive director of the ACLU of Southern California, which is representing the plaintiffs in the recall case. Wardlaw, appointed by President Clinton, is a former partner at O'Melveny -- Myers and she has been recusing herself from any cases in which O'Melveny lawyers are involved. Costa's lawyer, Diamond, is an O'Melveny partner.

That means that 13 members of the court have to vote in favor of holding a rehearing. If a majority votes for rehearing, then the court will draw a panel of 11 judges.

The decision delaying the election had no effect on Schwarzenegger's fund-raising machine, which rolled through the Antelope Valley like a money vacuum. The campaign reported Tuesday that it collected more than $420,000 on Monday, most of it from an event hosted by former state GOP Chairman Frank Visco.

One of Davis' anti-recall committees reported collecting more than $232,000 Monday, including $100,000 from Martin Wygod of Rancho Santa Fe, chief executive of WebMD.

Bustamante took in almost $206,000. A new committee funded by the Pechanga Band of Mission Indians, which operates a casino in Temecula, and the Sycuan tribe, which runs a casino east of San Diego, spent $50,000 on printing in support of Bustamante.

The Morongo Band of Mission Indians, which operates a large casino in Riverside County, paid more than $11,200 for production of a McClintock TV commercial.

Generally, however, the Republican continued to trail the other leading candidates. He reported that his campaign raised $48,340 on Monday.

Times staff writers Jenifer Warren, Sue Fox, Seema Mehta, Claire Luna, Lee Romney, Daryl Kelley, Patricia Ward Biederman, Nancy Wride, Allison Hoffman and Joel Rubin contributed to this report.

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