PASADENA, Calif. - In a case reminiscent of the legal battle that clouded the 2000 presidential election, a federal appeals court panel questioned yesterday whether California's recall vote should go forward because six counties still use the flawed punch card voting system.
Lawyers for civil rights groups that want to stop the election argued that a statistical study showed that 40,000 poor and minority voters might have their ballots excluded if punch card ballots are used in the Oct. 7 election.
"So we have to accept the unacceptable, is that what you're saying?" Pregerson asked lawyers representing the state.
In what appears to be the last major legal challenge to the recall, the panel heard nearly two hours of arguments before taking the case under submission.
The panel did not say when a ruling would be issued, but lawyers said outside the court that they expect a decision early next week.
The hearing was held to consider an appeal of an Aug. 20 ruling by U.S. District Judge Stephen V. Wilson in Los Angeles, who said he would not delay the recall election because it would be acting against the will of the people.
The legal challenge echoes the problems with "hanging chads" and miscounted votes in Florida during the 2000 presidential election.
Recall proponents want to go forward using punch cards in Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano counties. Those counties were previously ordered to replace the method with updated equipment by March.
Deputy Attorney General Doug Woods, representing the secretary of state, acknowledged during the hearing that the punch card system has been found "obsolete, antiquated and unacceptable."
Still, there will have to be a transition period for using any new system, he said.
With the election less than a month away, Woods told the judges: "It's too late in the game to switcheroo."
The judges' questions were so tough that Woods asked that he be given time to seek further review from the U.S. Supreme Court if the appeals court halts the election.
Another member of the panel, Judge Sydney Thomas, said: "The question is whether the difference in technologies is so stark it results in the dilution of votes."
Attorney Mark Rosenbaum, appearing for the American Civil Liberties Union, the National Association for the Advancement of Colored People, the Southern Christian Leadership Conference and the Southwest Voter Registration Education Project, told judges there are "grave federal interests" involving the Voting Rights Act and potential discrimination against poor and minority voters who may have difficulty with the punch card ballots.
"Their votes will not be counted," Rosenbaum said. "Not only do we have vote dilution in these 40,000 cases, but we will have disenfranchisement."
The 40,000 figure cited by plaintiffs represents a possible number of excluded votes due to punch card ballots as calculated by a statistical expert in election procedures.
At one point, Pregerson said he had considered the plight of voters who have had their recall polling places switched as a result of cost-cutting by cash-strapped counties.
"A lot of these folks get up early to work. They come in after a hard day's work and have to start looking for a new polling place," he said. "People are in a hurry. They go back to the old school where they thought they were supposed to vote and when it's not there they go home."
Woods, arguing on behalf of Secretary of State Kevin Shelley, who certified the election, said the average distance to a replacement polling place is a half-mile.
"I thought about that, too," Pregerson said. "A mother with four kids goes to where she thought the polling place was. She doesn't have a car or a chauffeur. A half-mile is a long way for her."