WASHINGTON – Urging a delay until all "punch card" voting machines in the state can be replaced, the American Civil Liberties Union (search) of Southern California has asked the 9th Circuit Court of Appeals (search) to postpone the Oct. 7 California recall (search) election until March.
A three-juge panel on the court appeared sympathetic to the case during Thursday's two-hour hearing in Pasadena. A ruling could come as early as next week, though the judges did not indicate when they will decide.
Judge Harry Pregerson said it was clear that the California secretary of state has found the punch-card system unacceptable because of errors.
"Does this mean that we have to accept the unacceptable?" Pregerson asked a lawyer arguing that the election should go forward.
Clearly jarred by the questioning, Doug Woods, an attorney for the secretary of state's office, asked at the end of his presentation for enough time to appeal in case the ruling needs to be taken to the U.S. Supreme Court.
"It's too late in the game to switcheroo," Woods said.
By next March, all of California's punch card machines must be replaced, according to a federal judge's February 2002 ruling in U.S. District Court. Six California counties — Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano — still use the punch card machines, which were the subject of much controversy during the 2000 presidential election (search).
The ACLU has argued that delaying the election until March will ensure the state avoids the "hanging," "dimpled" and "pregnant" chads that dominated the Florida recount and left the presidency up in the air for 35 days.
The ACLU filed the lawsuit on behalf of the California branch of the National Association for the Advancement of Colored People (search), the Southern Christian Leadership Conference (search) and the Southwest Voter Registration Education Project (search).
The groups have argued that minorities will be disproportionately disenfranchised because the punch card machines are used in counties with high minority populations.
"Their votes will not be counted," said ACLU-SC attorney Mark Rosenbaum. "Not only do we have vote dilution in these 40,000 cases, but we will have disenfranchisement."
California state officials have disputed the need to delay the recall election until the punch card machines have been replaced.
One state official said punch cards, which have a long history in California, may not be perfect, but they are perfectly useable.
"Punch cards aren’t the ideal way to conduct an election, part of the reason why, pursuant to a prior lawsuit, we are phasing them out," California attorney general's office spokesman Nathan Barankin told Foxnews.com. "But they are a system that has been used in this state for decades without Florida-like problems, and we don’t see why that can’t continue on October 7."
In a response to a query by a San Jose federal judge, the U.S. Justice Department ruled in August that the election would not violate the 1965 Voting Rights Act (search), which makes sure that groups are not disenfranchised in parts of the country with poor histories of conducting elections.
Lawyers for Democratic Gov. Gray Davis (search), the subject of the recall, filed a similar lawsuit in state court asking to delay the vote until March. The California Supreme Court turned it down.
The ACLU lost its original suit in U.S. District Court last month when Judge Stephen V. Wilson said he would not delay the election because it would be acting against the will of the people.
Some observers have speculated that the ACLU is bringing this suit in part for political reasons. Asked why the ACLU did not bring a similar case preceding the 2002 gubernatorial race, Barankin replied: "I don’t want to speculate."
A 2001 report from the CalTech/MIT Voting Technology Project (search) stated that 4 million to 6 million votes were discarded nationwide in 2000. The study estimated that by replacing punch card and lever machines, 1.5 million of these lost votes could be recovered.
The study cited a history of problems with punch card ballots, starting with IBM's withdrawal from the "election machine business" in 1968.
"In 1996, a contested and recounted primary for the Massachusetts 10th Congressional District led that state to abandon punch cards. We now face a similar choice nationwide because of the problems with punch cards in the Florida recounts. Technologies available today can produce better records of the vote than punch cards," the report states.
Maryland, Florida and Georgia all abandoned punch card machines after the 2000 election. California had originally planned to phase out punch card machines by 2006, but as a result of the federal court's order, moved the date up to 2004.
In 2002, Congress passed the Help America Vote Act (search), which provides funds for states to modernize their voting systems. The act does not mandate that states modernize their voting machines, but provides aid if states decide to upgrade.
The act provides $3.9 billion, of which $1 billion has been distributed so far, according to an aide to Rep. Bob Ney, R-Ohio, one of the act’s co-sponsors.
Observers gave the ACLU a slim chance of success in the appeal, but opponents of the recall say that if it goes on as planned, many people will find their votes weren't counted.
"If the election goes forward as scheduled on Oct. 7, 2003, we know with certainty that tens of thousands of votes will not be counted," said Bob Mulholland, spokesman for the California Democratic Party, which has urged its supporters to vote against recalling Davis.
The Associated Press contributed to this report.