Recall put back on track by court

SAN FRANCISCO - A federal appeals court yesterday moved swiftly and unanimously to reverse a decision to delay California's historic recall.

The decision returned the vote to Oct. 7 and quickly shifted the focus to tonight's debate - the only campaign forum that will include movie action hero and GOP front-runner Arnold Schwarzenegger - just as some leading Republicans are questioning whether a recall was such a good idea after all, if a divided party leads to the election of Democratic Lt. Gov. Cruz Bustamante.

As expected, 11 members of the San Francisco-based 9th U.S. Circuit Court of Appeals, sitting en banc, reversed the Sept. 15 ruling by three of its judges, all Democrats, to postpone the election at least six months. The three judges had ruled that some votes in six urban counties with 44 percent of California's voters could go uncounted because they would be using punch-card ballots similar to those challenged in the 2000 presidential election in Florida.

The court noted that hundreds of thousands of absentee ballots have already been cast.

“If the election is postponed, citizens who have already cast a vote will effectively be told that the vote does not count and that they must vote again,” the court wrote. “In short, the status quo that existed at the time the election was set cannot be restored because the election has already begun.”

The American Civil Liberties Union, which argued in favor of a delay, opted not to seek an appeal before the U.S. Supreme Court. University of Pittsburgh law professor Arthur Hellman, a constitutional law expert who has written about the 9th Circuit, said that was probably the right decision.

“I don't believe there was any way the Supreme Court would hear this case,” he said. “This was a unanimous en banc decision, and I don't believe the court has ever taken a unanimous decision of the 9th Circuit for review. Even beyond that, the federal court allowed a state election to go forward. There was no federalism issue here, no reason for the Supreme Court to intervene.”

Voters will be asked whether they wish to recall Democratic Gov. Gray Davis, the first time a California governor has been subjected to a recall. If Mr. Davis is removed, he will be replaced by a candidate selected through a second question on the ballot.

Polls have Mr. Bustamante, the only prominent Democrat on the list for that second ballot question, narrowly leading but in a statistical tie with Mr. Schwarzenegger. Yesterday's court ruling and tonight's debate are increasing pressure on state Sen. Tom McClintock, who is drawing conservative GOP votes away from Mr. Schwarzenegger, to pull out of the race.

“At this time in this election, I believe, for Tom, the governorship is simply a bridge too far,” said state Senate Republican leader Jim Brulte, who waited until yesterday to endorse Mr. Schwarzenegger. “This eight-week recall campaign is three-fourths complete, and Tom continues to be the third-place candidate. I also believe that Tom's candidacy puts at risk not only the election of a Republican governor but the recall itself.”

He did not go as far as U.S. Rep. Darrell Issa (R., Calif.), who helped finance the recall petition effort with $1.6 million of his own money. The Cleveland native, who moved his car-alarm business to California and became a multimillionaire, has suggested that Republicans might want to vote against the recall of Governor Davis if it appears that Mr. Bustamante will win the replacement vote.

Mr. Bustamante, elected separately from Mr. Davis, has championed many of the same policies as Mr. Davis and has proposed some of the same tax increases. Although dogged by Monday's court decision that he must return millions in contributions received from American Indian gaming interests well above campaign finance limits, Mr. Bustamante could walk into office without the same baggage as Mr. Davis and run for another term after completing Mr. Davis' term.

All eyes will be on Mr. Schwarzenegger tonight. He has selected a debate in Sacramento, sponsored by the California Broadcasters Association, as his only debate appearance. It is the only debate in which the candidates will have the questions in advance.

Besides Mr. Bustamante and Mr. McClintock, Mr. Schwarzenegger will be joined on stage by independent candidate Arianna Huffington and Green Party candidate Peter Camejo.