Challenging the Recall 

Thursday, Aug 28 2003

The fear of the hanging chad hasn’t done it. The head-scratching complexity of the recall process hasn’t done it. But the Voting Rights Act of 1965, and its effect on voting in Monterey County, may yet table the October 7 recall vote against Governor Gray Davis. Lawyers who have failed in several efforts to block the recall in court say their best bet comes Friday, when a three-judge federal panel will consider whether the law born in bloodshed on the Edmund Pettus Bridge outside Selma, Alabama, requires a delay in the recall vote.

How can a civil rights law aimed at poll taxes and literacy tests in the Deep South in the 1960s affect a recall right guaranteed by the California Constitution? And what does it have to do with tony Monterey County, home of rugged shorelines, exclusive golf clubs and hundreds of acres of lettuce fields?

Southern states long imposed poll taxes to keep African-Americans from voting, but a constitutional amendment ended the discriminatory taxes in 1964. Still, organizers who tried to register blacks at the courthouse in Selma were repeatedly turned away, and civil rights activists organized a march to Montgomery to dramatize their efforts. They were brutally beaten back by state troopers on the notorious bridge, but were able to cross in a second effort when they were joined by federal troops.

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With the nation’s attention riveted on televised images of the marchers, Lyndon B. Johnson pressed Congress to pass the landmark law that sent federal examiners to register black voters and barred literacy tests in states where less than half the voting-age population had been registered in the 1964 election.

When the act was reviewed in 1970, the Justice Department discovered additional jurisdictions that met the scrutiny threshold whereby less than half the population registered or voted in the previous presidential election, and there was a history of some test or device, such as a literacy test. California wasn’t added to the list — but Monterey and Yuba counties were, because of literacy tests applied there by registrars.

Voting-rights attorney Joaquin Avila said a 1975 review of the act expanded the definition of test or device to include English-only ballot materials where a certain percentage of the population didn’t understand English well enough to vote. That put tiny Yuba County under double scrutiny, and swept in Kings and Merced counties as well.

Now, whenever any kind of change in voting procedures occurs in these counties, they must be approved by the Justice Department to ensure that the election is open to all qualified voters. Most California counties, including Monterey, have sharply pared down the number of polling locations for the quick, unexpected October 7 vote, and that counts as a change under the Voting Rights Act.

The Justice Department usually takes at least 60 days to make a determination, but Justice officials could expedite the process. If they don’t, the court will have to decide whether to hold up mailing of absentee ballots to Monterey County voters. If they do, the whole process in Monterey could be upset — and any statewide vote that leaves out Monterey County would be invalid, so the judges could delay the entire recall.

Avila is one of the lawyers in two suits to enjoin the election — once for the recall itself, once for Proposition 54, the Ward Connerly– sponsored racial-information-ban initiative. Many observers said this week they expected the panel to delay the recall, but Avila was cautious. “You never know what they are going to do,” he said.

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