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The recall gets benched, by the Bench. Will it be more fun in March after Gray Davis has to present a budget?

8:20 AM, Sep 16, 2003 • By BILL WHALEN
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MONDAY'S BIG RECALL NEWS was supposed to be Arnold, Maria, Oprah and a not-so-private chat. That was before another trio grabbed the spotlight--a three-judge panel of the San Francisco-based 9th Circuit Court of Appeals, which ordered a postponement of the October 7 election because, in the judges' view, it's not fair to ask some Californians to use punch card ballots.

The ruling wasn't a surprise--in fact, the state's attorneys already had an appeal in the works before the 9th Circuit dropped its bomb and the recall committees had their attorneys on standby. (Although it did lead to one obvious question: If punch cards were an acceptable form of voting in November 2002, why not October 2003?)

What California has for the next week is recall limbo. The 9th Circuit stayed its ruling for seven days to give parties a chance to appeal (California Secretary of State Kevin Shelly will hold a press conference Tuesday afternoon detailing his legal strategy). Presumably, the state will take its case to the U.S. Supreme Court. If the high court turns down the request, then the recall vote will be shelved until California's March 2 primary. And that's supposed to benefit Governor Gray Davis, as more Democrats will turn out in that primary to choose their party's presidential nominee.

IF YOU WANT to read the 9th Circuit's opinion, click here and scroll down: Southwest Voter Registration Education Project, et al., v. Kevin Shelley. It's a fun read--well, fun if you enjoy the spectacle of jurists running elections. The three judges in question were appointed by Democratic presidents (Judge Harry Pregerson by Jimmy Carter; Judges Sidney Thomas and Richard Paez by Bill Clinton). By reputation, they're among the leftest-leaning judges on the 9th Circuit, which is made up of 17 Democratic and 9 Republican appointees.

Two themes emerge from their 66-page edict. For starters, it's obvious that they don't care much for the Supremes' decision in Bush v. Gore, which settled the 2000 election. Indeed, the judges seem to delight in the irony of using that case to the ACLU's benefit:

No voting system is foolproof, of course, and the Constitution does not demand the use of best available technology. However, what the Constitution does require is equal treatment of votes cast in a manner that comports with the Equal Protection Clause. Like the Supreme Court in Bush, "[t]he question before [us] is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." Rather, like the Supreme Court in Bush, we face a situation in which the United States Constitution requires "some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied."

The second theme: These judges don't care for the Republican president or his foreign policy:

In addition to the public interest factors we have discussed, we would be remiss if we did not observe that 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. Thus, we are especially mindful to the need to demonstrate our commitment to elections held freely, free of chaos, with each citizen assured that his or her vote will be counted, and with each vote entitled to equal weight. A short postponement of the election will accomplish those and reinforce our national commitment to democracy.

WATCH FOR THIS DECISION to have ramifications from coast to coast. Conservatives detest the 9th Circuit, the largest of the 13 federal circuits (it includes all federal courts in California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam, and the Northern Mariana Islands). In particular, they detest last year's ruling that reciting the Pledge of Allegiance in public schools is an unconstitutional "endorsement of religion" because of the addition of the phrase "under God" in 1954 by Congress.

Judicial reformers correctly argue that the 9th Circuit is too large (it covers more than one-third of the nation and serves more than 55 million people--15 million more than in the second-largest circuit), too much in demand (in 1999, 1,000 more appeals were filed with the 9th Circuit than with the second-busiest appellate court) and too California-centric (three-fifths of the judges come from the Golden State). Keep an eye on a bill by Idaho Representative Mike Simpson which would cut the 9th Circuit back to California, Nevada, and Arizona. A new 12th Circuit would include Hawaii, Alaska, Idaho, Montana, Oregon, Washington, Guam and the Northern Mariana Islands.

In the meantime, here are some variables to keep you thinking, while we wait for the courts to run their course:

(1) Is Sooner Better for Gray? Conventional wisdom says that delaying recall until the March primary is Governor Davis's insurance policy--because of a bigger Democratic turnout and a public supposedly less interested in recall. But the argument can be made that Davis might prefer an October 7 vote. Over the next three weeks, Davis can hold bill-signing ceremonies featuring whatever legislation he cherry-picks from bills just sent to him by the now-in-recess legislature. It's the perfect means for rallying the party faithful. But if recall is postponed, Davis then has to draft a budget and present it next January. Either he picks a fight over taxes and spending, or he offers a milquetoast plan that reminds Californians of why they dislike their risk-averse governor.

(2) For Tom McClintock, A Time for Choosing. The conservative state senator is up for re-election in November 2004. That leaves him with a choice in March: abandon the seat and run for governor; exit from recall and focus on the day job; or seek both offices at the same time. McClintock's people say they've reviewed the law and contend their man can legally justify running for two offices on the March ballot, if recall is postponed. But remember, Cruz Bustamante started to slide when he split hairs over moving money between campaign accounts.

(3) "I'll Drive." That's a line from "Terminator 3," and it may be Arnold's salvation if recall is put on ice. By March, Republicans would need an added incentive to increase their turnout. Help could come in the form of a referendum to undo the controversial new law giving drivers' licenses to illegal immigrants. The referendum needs only 400,000 signatures. Arnold has the money to make that happen, then he could ride the issue a la Pete Wilson and Proposition 187 in 1994.

(4) The More the Merrier? At present, the recall ballot includes 135 names--those Californians who filed at least 59 days before the scheduled October 7 election date. You know the lineup--the action star, the porn star, etc. But if recall moves to next spring, does that create a second window, with a deadline just after New Year's, for candidates to enter the March 2 election? With the fall TV season about to kick off, the timing couldn't be better if you're a "Joe Millionaire" loser or "Survivor" castaway. Sounds like a matter for the courts to decide--heaven help us if it's the 9th Circuit.

Bill Whalen is a research fellow at the Hoover Institution, where he follows California and national politics.