EDITORIAL TWISTING THE FACTS RECALL RULING MIGHT `DISENFRANCHISE' EVEN MORE VOTERS.

WHEN a three-judge panel of the 9th U.S. Circuit Court of Appeals set aside the California Constitution and called off the Oct. 7 recall vote, it was obvious to all but the most hardened ideologues that the court's decision relied on twisted logic.

Since then, it has become clear that the court relied on twisted facts, too.

The panel's ostensible reason for throwing the state into electoral chaos was protecting voters. The punch-card voting system used in Los Angeles and five other California counties - the very one that's been used successfully for 35 years - was too prone to errors, the justices decided.

Relying on a single audit that was little more than a statistical guesstimate, the court concluded that some 40,000 potential voters could be ``disenfranchised'' by the antiquated technology. To protect their interest, the court declared that the election would have to wait until the six counties could install newer voting technology.

But in testimony before the Los Angeles County Board of Supervisors on Tuesday, County Registrar-Recorder Conny McCormack dropped a bombshell that should shatter the panel's ruling: The new technology could ``disenfranchise'' even more voters than the old punch cards.

The replacement, ``Inka Vote'' technology that requires voters to fill in ballot bubbles, like the test bubbles kids fill in on standardized exams, has its own pitfalls. Optical scanners can't always accurately read ballots with stray or incomplete marks, thus allowing for plenty of human error.

And if there's any time voters would be prone to make errors, it would be their first time using the new technology - next March 2.

Complicating matters even further is that, if held in March, the recall election would coincide with the presidential primary, as well as various local elections and initiatives. That's too much material, according to McCormack, to fit on one ballot, so all voters would need to fill out two, thus doubling the potential for mistakes.

In short, a March election would probably sow more confusion and voter error than one in October.

Not that confusion should be a factor in picking an election date one day or the other. The California Constitution guarantees a recall election within 60 to 80 days after voters gather enough signatures. For that reason alone, Oct. 7 should remain the election date.

But McCormack's testimony exposes the lie behind the judicial panel's ruling, as well as the dishonest logic of the American Civil Liberties Union, which pushed for the election delay. The idea of a perfect election, free from all human error, is a legal fiction designed purely to help Gov. Gray Davis hang on to his office.

That neither Secretary of State Kevin Shelley nor Attorney General Bill Lockyer exposed this fallacy when making the people's case before the court raises questions about just how hard they have defended the constitution and the public interest in face of the threat to their party and their party's governor.

Fortunately, the county supervisors will allow McCormack to submit a friend-of-the-court brief when the full 9th Circuit reconsiders the ruling. Perhaps this time, with all the facts now out in the open, the court will make the right decision and not prolong the recall circus for five more months.