Judges Consider Voting Equipment Before California Recall Vote

An 11-judge panel of the 9th Circuit Court of Appeals (search) will make a decision Tuesday about whether to allow California's recall election to go forward as planned, a court spokesman said.

The judges hearing the case on whether the punch card ballot error rate is so high that it would disenfranchise voters went straight to questioning attorneys Monday, asking opponents of the election whether errors can even be counted before the Oct. 7 vote takes place.

Judges interjected within moments of opening arguments, asking lawyers from the American Civil Liberties Union (search) whether anyone would be disenfranchised by faulty equipment when the state could hold off certifying the election until ballots are properly counted.

"The right to vote has never been dependent on the existence of a recount," replied ACLU attorney Mark Rosenbaum, who argued to delay the recall until punch-card ballot machines in six counties are replaced.

With just 15 days before the scheduled election, the court held an en banc -- full review -- of a decision by three of its justices last week to put off the two-part vote on whether to recall Democratic Gov. Gray Davis (search) and who should replace him.

The three judges had agreed with arguments made by the ACLU that holding the election next month would disenfranchise as many as 40,000 voters in the counties that still use punch-card ballot (search) machines, which are prone to as much as a 3 percent error rate.

Opponents of the delay, including the secretary of state's office, which is in charge of the election, have argued that putting off the election will disenfranchise the 400,000 people who have already sent back absentee ballots and all the other voters who use different machines with similar error rates.

"The punch-card system that we utilized in California is the same punch-card system that has elected every statewide officer for the past four years, it has elected Gov. Davis twice, it has elected our incumbent president of the United States and every president since John F. Kennedy, give me a break. This is good enough for America, always has been, always will be," Chuck Diamond, an attorney arguing for the recall to go forward, told Fox News.

Judge Alex Kozinski asked ACLU attorney Laurence Tribe whether the punch-card ballot is any more or less prone to errors than other machines.

"Although it's not an impossibility, the experience is such that getting the people of California to believe that this is not a second-class technology now that it has been deemed deficient because it is outmoded, it would be quite a task," Tribe said.

Kozinski and Judge Johnnie B. Rawlinson challenged Diamond to explain what the threshold for voting errors can be before it violates the Constitution.

"We cannot value one person's vote over another," Rawlinson said.

If one out of every 10 votes doesn't count, Kozinski said, is that "close enough for government work?"

"If it was 50 percent I think we'd want to take a searching look," Diamond conceded. Still, he stressed, "You don't stop everybody from voting if some of the people who do vote may have their votes counted erroneously."

Fox News legal editor Stan Goldman said the court is deciding whether a machine that is outmoded also is no good.

"Just because narrow ties are out of fashion doesn't mean they are defective," he said.

The justices took the unusual step of allowing cameras in the courtroom to televise the hearing. Each side was given 30 minutes to make its case. The lively questioning left no indication how the judges could rule.

Eight of the 11 judges hearing the case were appointed by Democrats, the other three by Republicans, but overall the group is considered fairly conservative.

In order to go to an en banc hearing, 12 of the 23 eligible justices had to vote for the review. The full court has only agreed to take 17 en banc cases this year out of 1,000 three-judge panel decisions.

Court observers say that is an indication that the decision will be overturned.

"All they need are six votes," Goldman said, adding that odds are that six of the justices chosen by lottery system to preside over the case supported the en banc review.

"It will be a stunner if this court does not, and relatively fast, certainly within the next two days at the most, reverse the three-judge panel. If they don't do that, everyone, including the judges on the three-judge panel, will be shocked."

Depending on the outcome, the case could be appealed to the U.S. Supreme Court. For an Oct. 7 election, Monday was the voter registration deadline.

Candidates have continued to operate as though the election were to be held on Oct. 7, and have fund-raised steadily.

Lt. Gov. Cruz Bustamante (search), the only viable Democrat running to replace Davis, lost his own lawsuit Monday, when a state judge ruled that Bustamante had violated the state's campaign finance laws by accepting $3.8 million in donations from seven California Indian tribes.

The limit on contributions -- which went into effect this year -- is $21,200. Bustamante's staff said they did not violate the law because the money was deposited into Bustamante's 2002 campaign account and was therefore not subject to the new limits. Bustamante later funneled the money into a new account for the campaign to fight Proposition 54, a racial privacy initiative. Bustamante has bought and starred in several television ads to oppose the proposition.

Republican state Sen. Ross Johnson of Irvine, a supporter of candidate Arnold Schwarzenegger (search), filed the suit. Judge Loren McMaster, who heard arguments on Friday and had previously imposed an injunction on the funds, ruled that the Fair Political Practices Commission clearly states that funneling the money to old accounts is illegal.

McMaster ordered Bustamante to return the money to donors.

Davis appeared in Los Angeles on Monday with Washington Gov. Gary Locke, Davis said their states and Oregon would work together to obtain fuel-efficient vehicles, reduce diesel fuel emissions and improve monitoring of greenhouse gas emissions.

"Obviously, an initiative from Washington, D.C., along the lines of what we are doing today would be welcome, but in its absence the states have to act," he said.

On Tuesday, he was meeting with Connecticut Sen. Joe Lieberman, one of the 10 Democratic presidential candidates, to discuss homeland security.

On Monday, Schwarzenegger released two new statewide 30-second television ads, including one criticizing Bustamante and Republican state Sen. Tom McClintock - without mentioning them by name - for taking tribal donations. The second ad criticizes Davis and supports the recall.

Rep. Darrell Issa said Monday that if either McClintock or Schwarzenegger didn't drop out, he would urge voters to vote no on recalling the governor because a yes vote would assure a victory for Bustamante.

"As someone who some people call 'the godfather of the recall,' nobody should be more determined to remove Gray Davis from office," said Issa, who spent $1.7 million to get the recall on the ballot.

Davis entered the week with new poll numbers showing he is gaining momentum.

A statewide poll by the Public Policy Institute of California released Sunday showed 53 percent of likely voters want to oust Davis, down from 58 percent last month. Forty-two percent said they would vote to keep him in office.

It mirrored two other statewide polls earlier this month that showed that, while a majority of voters wanted to recall Davis, the margin has tightened.

The same poll found 28 percent support for Bustamante, the only major Democrat among 135 candidates vying to replace Davis if he is recalled, and 26 percent for Schwarzenegger. It showed 14 percent backing McClintock.

The poll of 1,033 likely voters conducted between Sept. 9-17 had a margin of error of plus or minus 3 percentage points.

About 90 of the 135 candidates appeared Monday night as audience members of "The Tonight Show With Jay Leno," the venue Schwarzenegger used to launch his candidacy.

Fox News' Adam Housley and Trace Gallagher and The Associated Press contributed to this report.