Secretary of State Kevin Shelley told the 9th U.S. Circuit Court of Appeals that a postponement would be unfair to voters who have already cast absentee ballots. Civil rights groups and the appeals court have said the hurry-up election risks the loss of thousands of votes made with punch-card ballots.
Shelley's arguments came amid a flurry of legal developments this week that have clouded the future of the election to recall Gov. Gray Davis.
On Monday, a three-judge panel of the 9th Circuit postponed the election; then a day later, the full court made the rare move of saying it might be willing to reconsider. The court sought briefs from both sides yesterday and will decide whether to take the case up at another hearing.
If a hearing is held, an 11-judge panel can uphold the ruling to delay the election or overturn it and restore the Oct. 7 date. A court clerk said the judges are not expected to decide before tomorrow on whether to rehear the case.
The American Civil Liberties Union says up to 40,000 votes will go uncounted in the recall election because six counties use punch-card ballots - the same system that made a mess of the 2000 presidential election.
In its brief filed yesterday, the ACLU asked the appeals court to let the panel's decision stand, saying it would violate the Constitution to permit "this flawed special election to go forward."
Shelley said the vote must proceed Oct. 7 because thousands of absentee voters have been mailing in their ballots, reflecting their decisions whether to recall and replace the governor.
The state has sent 2 million absentee ballots to voters, he said, and California's 58 counties have mailed out sample ballots and 13 million ballot pamphlets.
Shelley noted that the California Constitution demands that the vote be taken no longer than 80 days after enough signatures of registered voters had been collected to force the recall.
"Implicit in a recall election, and explicit in the time frame provided by the California Constitution, is a strong public interest in promptly determining whether a particular elected official should remain in office," Shelley's lawyers said.
Recall supporters gathered enough signatures this summer to put the initiative before voters Oct. 7. The first ballot question asks whether Davis should be recalled, and the second offers a list of replacement candidates if the governor fails to get a majority of the vote on the recall question.