As lawyers clean up small details, the show must go on in California


Issue: "Isabel's slow march," Sept. 27, 2003

Just when it seemed America's weirdest election couldn't get any weirder, the nation's weirdest court weighed in with a decision that left California-and the rest of the country-wondering what could possibly happen next.

With just three weeks to go before the vote to recall Gov. Gray Davis, the 9th Circuit Court of Appeals on Sept. 15 managed to stun even veteran observers of the left-wing bench. Responding to a lawsuit brought by the ACLU, a three-judge panel ruled that the punch-card ballots used in Los Angeles, San Diego, and Sacramento would "disenfranchise" poor, minority voters. The whole election would have to be postponed, the court said, until a suitable voting apparatus could be found.

With that, an already-messy election instantly turned into a free-for-all. The major candidates, who spent millions of dollars in their dash for the governor's mansion, suddenly worried about having to raise millions more for an election that might be months away. Millions of voter guides were already in the mail, and some 30,000 absentee ballots had already been turned in.

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The candidates reeled. "This recall has been like a roller coaster," complained Mr. Davis, who vowed to keep stumping despite the court's ruling. "There are more surprises than you can possibly imagine." Meanwhile, state Sen. Tom McClintock, the leading conservative in the race, blasted the "outrageous decision" and called the 9th Circuit a "national laughingstock."

Other leading candidates, including Arnold Schwarzenegger and Lt. Gov. Cruz Bustamante, said they, too, would stay on the campaign trail in case a higher court intervened-something the three-judge panel appeared to deem likely. Rather than call for an instant halt to the election, the judges gave all parties a week to appeal the decision either to the full 9th Circuit or to the Supreme Court.

Recall supporters said they'd go directly to the nation's highest court, rather than waste precious time with an appeal to the most liberal. But on Sept. 16, the remaining judges on the 9th Circuit took matters into their own hands, asking for briefs in the case even though no one had requested the full hearing. Thomas Hiltachk, a lawyer for the recall movement, said Tuesday's move was "a positive indication that a large number of judges in the 9th Circuit are questioning whether the decision yesterday ought to be upheld."

If 11 judges on the full 9th Circuit decide to save face by overturning three of their colleagues, no one would breathe a bigger sigh of relief than the U.S. Supreme Court. Hearing the California case would mean revisiting the legal issues of Bush vs. Gore, one of the most controversial decisions in the history of the high court. The justices would love to avoid stepping back into that legal minefield, but whatever form the California decision takes in the days ahead, an appeal would be almost impossible to ignore.


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