Federal judge says he may delay California's Oct. 7 recall

DAVID KRAVETS, AP Legal Affairs Writer

Friday, August 15, 2003

©2003 Associated Press

(08-15) 18:08 PDT SAN JOSE, Calif. (AP) --

A federal judge said Friday he may postpone California's Oct. 7 recall vote, and he ordered Monterey County to refrain from mailing out overseas ballots until issues raised by two civil rights groups are resolved.

U.S. District Judge Jeremy Fogel's ruling came hours after the civil rights groups argued that the hurry-up election is forcing changes in the voting process that require federal approval.

Under the federal Voting Rights Act of 1965, any changes in the voting process must be pre-cleared by the Justice Department in places like Monterey County that have a history of low voter participation.

"I don't think there can be an election without pre-clearance," warned Fogel during two hours of oral arguments Friday. Later in the day, he scheduled another hearing for Aug. 29 and suggested he may delay the election if federal approval hasn't happened by then.

"This court is extremely reluctant to intervene in or disrupt the electoral process unless it clearly is compelled to do so," Fogel wrote late Friday. "At the same time, permitting voting or other forms of direct political participation to be affected by changes in voting procedures implemented in contravention of the Voting Rights Act cannot be countenanced."

He ordered Monterey County not to send out approximately 200 ballots to registered voters overseas.

The election, just 53 days away, is forcing some counties to make a number of moneysaving changes that lack federal approval. The cases argued Friday focus on Monterey County, which, among other things, plans to cut costs by reducing its usual 190 polling places to 86 and hiring fewer Spanish-speaking poll workers.

The California Attorney General's office and Monterey County officials conceded that they need federal approval, and that without it, the entire recall election, including the two voter initiatives on the ballot, would have to be postponed, perhaps to the March primary.

Justice Department spokesman Jorge Martinez said the department was reviewing the state's pre-clearance request. And if the federal government approves the changes before Oct. 7, "there's no harm, no foul," argued Leroy Blankenship, Monterey's assistant county counsel.

But it's already too late to get federal approval, argued the Mexican American Legal Defense and Educational Fund and the Lawyers Committee for Civil Rights. They said the changes had to be approved before the secretary of state's office certified on July 23 there were enough signatures for a recall election.

"You must pre-clear your voting changes before they are adopted," said attorney Robert Rubin, of the Lawyers Committee.

Judge Fogel did not resolve the timing issue in his ruling late Friday.

Thomas Saenz, MALDEF's attorney, said in an interview late Friday that the delay in mailing overseas votes could throw a constitutional monkey wrench into the entire election. If the Oct. 7 date holds and overseas Monterey County voters can't get their ballots back in time, Saenz said, "There's constitutional problems. You can't have one group of voters that's not allowed to have their votes count."

Monterey, with its large Hispanic population and history of low turnout among Hispanics, is one of four California counties subject to the "pre-clearance" requirement under the Voting Rights Act. The others are Merced, Kings and Yuba.

The 1965 law was intended to prevent the various means that had been used in the South to disenfranchise black voters, such as changes in polling stations or other requirements imposed on voters just before Election Day.

The cases are Oliverez v. California, 03-3658 and Salazar v. Monterey County, 03-03584.



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Editors: David Kravets has been covering state and federal courts for a decade.

©2003 Associated Press