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Appeals Court Delays Recall Election for Minority Regions

The New York Times -- SAN FRANCISCO

A federal appeals court here on Monday delayed the recall vote on Gov. Gray Davis, ruling that the scheduled date, Oct. 7, did not give several counties with large minority populations enough time to replace outdated punch-card voting machines.

A three-judge panel of the 9th U.S. Circuit Court of Appeals, all Democrats, said a postponement was warranted because “punch-card voting systems are significantly more prone to errors” than other systems and could lead to an inordinate number of ballots being disqualified.

“This is a critical time in our nation’s history when we are attempting to persuade the people of other nations of the value of free and open elections,” the judges ruled. “A short postponement of the election will accomplish those aims and reinforce our national commitment to democracy.”

The panel, which did not set a new date for the election, said its decision would not take effect for one week to allow for an appeal, perhaps as soon as Tuesday. Proponents of the delay want the election pushed back to March 2, the presidential primary in California, when the punch-card machines will no longer be in use.

“This recall has been like a roller coaster,” Davis, a Democrat, who was not a party to Monday’s legal action, said in Los Angeles. “There are more surprises than you can possibly imagine.”

The ruling was condemned by Republicans as a partisan ploy by the Democrats, who it is generally assumed would benefit from a March election because of higher voter turnout in a presidential election year and fading memories of Davis’ missteps. Several other legal attempts to delay the election by those sympathetic to Davis had failed.

One of the recall’s biggest financial backers, Rep. Darrell Issa, a Republican from San Diego, called Monday’s decision a “judicial hijacking of the electoral process.”

Officials from a pro-recall group backed by Issa said they would request an emergency stay of the ruling from the U.S. Supreme Court, though the court is not in session and it was unclear if or when the justices would take up the matter.

“The voters deserve finality,” said Thomas Hiltachk, a lawyer for the group, Rescue California, which represents the recall’s original proponent, Ted Costa. “We need, and the voters deserve, to know sooner rather than later if this election is going to happen.”

Hiltachk accused the three judges of “making up” and “twisting” facts to reach their conclusion, particularly in arguing that about 40,000 voters in the punch-card counties would be disenfranchised because of anticipated problems on Election Day.

“They simply ignored the evidence that was offered to them,” Hiltachk said.

Dr. Henry E. Brady, a professor of political science and public policy at the University of California, Berkeley, defended the ruling, which was based in part on his analysis of various voting systems. In filings with the court, he predicted that about 1 percent of votes cast on Oct. 7 would not be counted because of errors with the punch-cards, more than double the error rate of other systems.

“If that doesn’t sound like a lot,” Brady said in an interview, “I think people should think how they would feel if they went to an ATM, and one out of 100 times it took an extra buck from them. I think people would be upset about that.”