Let The Games Go On

Never mind. After a week of on-again, off-again uncertainly, a federal appeals court in San Francisco unanimously ruled today that the California recall election will go forward on Oct. 7 after all.

The ruling seems certain to be the final word on the election's timing, since the plaintiffs quickly announced they would not appeal the case to the U.S. Supreme Court. The ruling also signals the start of the final phase of the surprising contest, one that is likely to get rougher and meaner in the final two weeks.

Tuesday's court decision by an 11-judge en banc panel of the Ninth Circuit reversed last week's decision by three other Ninth Circuit judges that put off the vote until spring. In that decision, judges used the famous Bush v. Gore case that settled the Florida recount in 2000 to rule that the 44 percent of California voters (including those in Los Angeles who would vote using the same error-prone punch-card ballots that gave us hanging and dimpled chads) wouldn't be receiving the equal protection of the law. Minority voters who had their votes miscounted using the dicey ballots might be especially harmed, the court found. The decision noted that the state had agreed to replace the discredited ballots before next March's presidential primary.

The Ninth Circuit judges who ruled Tuesday rejected that argument completely. They found in effect that the sure harm of stopping the vote outweighed the potential harm of miscounted ballots. The panel rejected the idea that minority voters in the counties would be clearly harmed by the voting system, saying that the case for harm was "merely a speculative possibility." Stopping the balloting itself, they found, would cause greater hardships. They noted that candidates have already spent millions of dollars. Absentee voters had already voted, ballots that would have to be torn up if the election were postponed until early March. "The investments of time, money and the exercise of citizenship rights cannot be returned" to candidates or voters, the judges wrote in the 11-0 opinion. "There is no doubt that they right to vote is fundamental, but a federal court cannot lightly enjoin a state election."

One of the plaintiffs in the case, the American Civil Liberties Union, quickly announced they would not appeal the decision to the U.S. Supreme Court. "We do not believe we should prolong the uncertainty any longer," Dorothy M. Ehrlich, the ACLU's executive director for Northern California, told reporters. The group reiterated, however, that it continues to believe the election using mixed methods of balloting of variable reliability was unfair. "We remain deeply concerned over the fairness and accuracy of California's October 7th election," the group said in a separate statement. "We can only hope, along with all Californians, that it will not turn into another Florida debacle."

The reinstatement leaves just two weeks before Election Day, and, the distraction aside, candidates lost no time in attacking their rivals. Lt. Gov. Cruz Bustamante launched a negative ad denouncing Republican Arnold Schwarzenegger for not sharing the values of Democrat voters Bustamante wants to bring into his column.

Schwarzenegger himself fired off two negative ads. In one, he attacked Davis by name, using voters talking negatively about Davis's management of the energy crisis, the economy and the decision to sign a bill allowing illegal immigrants to obtain driver's licenses. It concludes with an elderly man saying: "The people are sick and tired of the way Gray Davis is mismanaging this great state of ours."

The actor-candidate attacks Bustamante and state Sen. Tom McClintock in a second ad that blasts fellow candidates for taking money from Indian gaming interests. "All the other major candidates take their money and pander to them," a stern Schwarzenegger says, staring into the camera. "I don't play that game."

Ironically, Bustamante may have to give back the tribal money. The chief Democrat running to replace Davis got bad news when a state court judge told him Monday to return nearly $4 million that Indian tribes donated to his campaign. So he can't even use the money he's being criticized for taking. Earlier, Bustamante had moved the money from his personal campaign account to an account whose ostensible purpose was to defeat Proposition 54, which would halt the state from keeping racial and ethnic data. But the ads being made featured Bustamante, so they might have been expected to help his gubernatorial campaign, too.

Candidates too poor to buy time in the air war will get their chance Wednesday when during a debate sponsored by California Association of Broadcasters. It's the only debate at which Schwarzenegger will take part, and Arianna Huffington, and McClintock will probably join Bustamante in attacking Schwarzenegger. Huffington and McClintock (and Green Party candidate Peter Camejo) spent much of the past week heaping scorn on the actor because the debate was the only one in which sponsors announced the topics beforehand.

Governor Davis and his strategists hope the catfighting among the men and women who hope to succeed him will sicken voters and lead them to vote no. Casting the recall as a circus, Davis has succeeded in cutting the recall's lead by about half in recent weeks. Whether he can find a majority of voters to agree with him isn't clear, but in a bizarre irony, he got a little help from the man who put the recall on the ballot in the first place. Rep. Darrell Issa, who spent nearly $2 million of his own money to launch the recall, advised voters this week that if Schwarzenegger and McClintock both continued to run and split the Republican vote, Issa himself would vote against the recall. "When you vote, if there are still two major Republicans on the ballot, Arnold Schwarzenegger and Tom McClintock, then I advise you to vote no on the recall," he said. Issa issued the warning to bring pressure on McClintock, who trails Schwarzenegger, to withdraw from the race. Issa's warning seemed to be part of a campaign to force out McClintock; today, Sen. Jim Brulte, the top GOP legislator, turned up the heat on his fellow senator by endorsing Schwarzenegger. Let the circus continue.