Commentary: On Law: Recall headed for high court

WASHINGTON, Aug. 22 (UPI) -- The battle over delaying the California recall vote probably is headed for the Supreme Court of the United States.

When and if it does arrive at the high court, it may revive many of the tensions evoked in Bush vs. Gore, when the court split 5-4 along strictly ideological lines to end the 2000 presidential election.

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What's worse, the same divide in Bush vs. Gore may re-emerge in the California case.

If it does, it will be one more blow to the credibility of the U.S. judicial system and open up old wounds in a nation that has largely gotten beyond the bitterness of the last race for the White House.

To bring you up to speed in case you haven't been following the California case: The American Civil Liberties Union has filed a suit to delay the recall vote from October to March.

The state has set Oct. 7 as the date for the recall vote. But the ACLU says that will mean at least six counties will have to use paper "punch card" ballots, instead of the electronic voting machines they've been ordered to install by a federal court.

The six counties include Los Angeles and are heavily Democratic.

Citing Bush vs. Gore, the ACLU contends that if the recall vote is held in October it could turn into the "debacle" witnessed in the Florida election, when "hanging chads" and other punch card problems apparently disenfranchised thousands, if not tens of thousands of voters.

In other words, if you voted by punch card ballot in Florida, your vote had a much higher chance of not being counted -- of being meaningless -- than if you voted by electronic ballot.

The ACLU says the California recall vote is poised to repeat the Florida mistake.

Instead, the ACLU wants the vote delayed until next March, when new voting machines are scheduled to replace punch cards in the six counties.

Wednesday, a federal judge ruled against the ACLU, saying the people of California had a "public interest" in determining as quickly as possible whether "a particular elected official" should remain in office.

The ACLU indicated it was appealing the ruling.

Now for the political aspects of the case.

The judge who made the ruling is a conservative Reagan appointee. The "particular elected official" is the unpopular Democratic Gov. Gray Davis, who desperately needs more time to convince California voters that he should not be recalled.

As things stand now, polls show that Davis would easily be recalled in the first of a two-part ballot. In the second part of the ballot, choosing Davis's successor, polls also show Republican candidate and actor Arnold Schwarzenegger winning a plurality and becoming governor with less than one-fourth of the vote in a crowded field.

But the ACLU is about to take the case into much more friendly political territory. The U.S. Court of Appeals for the 9th Circuit is the most liberal federal appeals court in the country.

Odds are good that the appeal will be heard by a liberal three-judge panel from the circuit's 26 appellate judges, and the ACLU stands a good chance of reversing the judge.

Unfortunately for the ACLU, however, the 9th Circuit is also the most-reversed appeals court in the country. If the state loses at the appellate court level it will almost certainly ask the Supreme Court for review.

And there's nothing the conservative-moderate majority of the Supreme Court loves better than reversing the 9th Circuit appeals court.

The danger is that the four Supreme Court liberals who made up the dissent in Bush vs. Gore -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- might decide to use the California case to rub the court majority's nose in it.

The Bush vs. Gore majority was made up of three conservatives -- Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas -- and two moderate conservatives -- Justices Sandra Day O'Connor and Anthony Kennedy.

At issue in Bush vs. Gore, of course, was whether a hand recount of the presidential vote in 64 of the state's 67 counties ordered by the Florida Supreme Court should be stopped.

The five-justice conservative-moderate majority, which normally defends states' rights, abandoned its usual position and in Bush vs. Gore cited a federally guaranteed civil right -- equal protection under the law -- to stop the recount, brushing aside the Florida Supreme Court.

The four-justice liberal minority, which normally places emphasis on federally guaranteed civil rights, also abandoned its usual position and cited a state right -- the right of a state's highest court to interpret state laws without interference from the federal courts -- to say that the recount should go forward.

In effect, the two sides appeared to throw aside long-held judicial principles to achieve a political result.

No truly objective observer in this country can doubt that if all the votes had been counted in Florida, Al Gore, not George W. Bush, would be resting his boots on the White House furniture. Whether you admire Bush or not, that fact remains. As a nation, however, we've sublimated it.

Now, almost three years later, we are facing another controversial election dispute that probably will be decided by the Supreme Court.

Does anyone doubt that the two sides will return to their long-held principles, taking exactly the opposite positions they took in Bush vs. Gore?

The five-justice moderate-conservative majority should again prevail, to the advantage of Republicans, and probably would rule that the state has a right to conduct its own vote.

The four-justice liberal minority also would revert to its roots, and in dissent say that voters in California are being denied a basic civil right that should be protected by the federal courts -- a result that, if it had prevailed, would have been to the advantage of a "particular elected official."

Perhaps this putative scenario is too dark. The Supreme Court could show more solidarity this time around. Or it could just let the 9th Circuit appeals court ruling stand, even if the state and the Republicans are the losers. But don't bet the farm on it.

The odds are good that if the California case reaches the Supreme Court it will be even more politicized, and the justices will once again, in the words of the late Justice Oliver Wendell Holmes, look like nine scorpions in a bottle.

Mike Kirkland is UPI's senior legal correspondent. He has covered the Supreme Court, and other parts of the legal community, since 1993.