A major patch of legal underbrush was cleared from the path toward California's recall election on Wednesday, when a federal judge refused to delay the balloting until punch-card voting machines are phased out in six counties.

"This was the one I was sweating more than the rest of them," said Ted Costa, chief proponent of the election to recall Gov. Gray Davis. He characterized the remaining federal litigation as "administrative."

Legal experts also said efforts to postpone the election by court action now face an uphill challenge, as judge after judge has given thumbs up to the Oct. 7 polling date.
They said a court-ordered delay still was a slim possibility, however, with the latest decision heading for an appeal and another legal claim waiting to be played out before a federal judge in San Jose.

On balance, U.S. District Judge Stephen V. Wilson in Los Angeles said in the punch-card case that the public has a greater interest in holding the election on schedule than in blocking it while the error-prone balloting system remains in place in Sacramento, Los Angeles and elsewhere. The punch-card machines have been decertified for use statewide as of next March.

"The recall is an unprecedented event, which directly reflects the will of the people of California," Wilson said in a lengthy written opinion. "Delaying the election for half a year beyond the date set pursuant to the California Constitution undoubtedly works against the public interest implicit in a recall election."

The American Civil Liberties Union, which filed the civil rights suit, said it would appeal within a matter of days.

Alan Schlosser, the ACLU's Northern California legal director, predicted a "Florida-style debacle" if the decision wasn't overturned.

Projections submitted by the ACLU indicate the machines could cause errors on 40,000 ballots in what could be a tight election contest.

The ACLU said the affected counties have unusually large numbers of minority voters and the U.S. Voting Rights Act and the 14th Amendment would be violated by placing them at a disadvantage.

But Wilson said "precise vote equality" wasn't a legal necessity under the circumstances, in which many or most voters disenfranchised by the machines probably would be white.

The judge refused to apply the U.S. Supreme Court decision that found discrimination in the recounting of punch-card ballots in Florida during the 2000 presidential election. The Supreme Court's analysis in Bush v. Gore "was limited to its unique context," he said.

California Secretary of State Kevin Shelley said he hoped to mitigate the problems associated with punch-card balloting by educating voters.

"I want each voter to know how to use the ballot system in their county so that every vote will count," he said.

Federal appellate courts have yet to weigh in on the punch-card issues in the California race.

The ACLU's next stop will be the 9th U.S. Circuit Court of Appeals, where the case is expected to go before a moderately liberal panel of three judges.

Vikram Amar, a constitutional authority at Hastings College of the Law, said he expected the circuit judges to approach the case with an open mind but with few options to reverse the comprehensive ruling issued by Wilson.

"I wouldn't say the ballgame is over," said Amar. "I would say this is a big setback."

The punch-card issues also could still be appealed to the U.S. Supreme Court in the ACLU case or in an earlier case that Davis filed, and lost, in the state Supreme Court. The state justices refused to postpone the election without explaining their reasoning.

A spokesman for the Davis campaign said Wednesday that a decision whether to appeal had not been made.

The other major piece of litigation outstanding is a federal suit in San Jose. A district judge there indicated last week that he'll halt the balloting unless the U.S. Department of Justice clears changes in voting procedures, such as consolidation of precincts, that could suppress minority voting in some counties.

But, Amar said, "That (suit) doesn't have many legs left."

This week the Justice Department, after considering the matter for two weeks, gave the state clearance for the Oct. 7 election date.

Amar said the speed of that action "suggests they will do what it takes to get the wrinkles out by Oct. 7" by clearing the procedural changes as well. Monterey County submitted those to Washington, D.C., for review late last week.

McGeorge School of Law professor Brian K. Landsberg, an authority on the Justice Department's process, said regulations provide for expedited clearance. He said a department ruling in favor of the county could not be challenged in court, but the county could file suit to challenge an adverse decision in U.S. District Court for the District of Columbia.