The court, whose three-judge panel ruled this week that antiquated punch card voting machines used in six counties would disenfranchise too many voters, announced this morning that an 11-judge panel would reconsider the lawsuit on Monday afternoon.
The 11-person panel, chosen by lottery, includes none of the judges from the original case and none of the court’s most liberal members.
In addition, the panel includes two of the court’s staunchest conservatives — Diarmuid O’Scannlain of Portland, a Reagan appointee, and Andrew Kleinfeld of Anchorage, an appointee of George H. W. Bush, as well as Alex Kozinski, of Pasadena, a Reagan appointee who is the court’s leading libertarian.
The panel includes only one jurist appointed by President Carter — Chief Judge Mary M. Schroeder of Phoenix — two Reagan appointees, one Bush appointee and seven appointees of President Clinton. But the latter group includes five judges who are generally more conservative than the other Clinton appointees, including one Republican, Richard Tallman of Washington.
“If you were the ACLU,” which is representing the plaintiffs in this case, “you would not think the gods had smiled on you a second time,” said Stanford University law professor Pamela Karlan, a voting rights expert.
On the other hand, Santa Clara University law professor Gerald Uelmen, who was very praiseworthy of the original decision, cautioned against predicting the outcome. “I think this is a very balanced panel. I think the case is still a horse race,” Uelmen said.
The court has given each side 30 minutes to argue its case Monday. Although no court official would comment on when a ruling might occur, legal observers said they expected that it certainly would come by the end of next week.
The lawsuit was filed this summer by several civil rights groups and tried by lawyers from the American Civil Liberties Union, who charged that the current punch card voting system is not reliable. The machines, already deemed outdated by Secretary of State Kevin Shelley, were ordered by his office to be replaced by the March 2 presidential primary.
The panel’s Monday decision — which infuriated many Republicans who charged that it was politically, not legally motivated — said that the machine’s unreliability would cause certain votes to be counted differently than others. By disenfranchising certain voters, the court wrote in its ruling, the recall election would have violated federal election laws. The panel cited the Supreme Court’s decision in Bush vs. Gore, which decided the outcome of the 2000 presidential election, numerous times.