MARCH VOTE WORSE COUNTY REGISTRAR WARNS AGAINST COMBINING RECALL, PRESIDENTIAL PRIMARY.

Byline: Troy Anderson and Beth Barrett Staff Writers

Los Angeles County's top election official warned Tuesday that holding the governor's recall election in March with the presidential primary rather than Oct. 7 would lead to worse voter confusion and more errors in marking ballots.

Registrar-Recorder Conny McCormack's warning came as the U.S. Ninth Circuit Court of Appeals agreed to consider reviewing Monday's bombshell ruling by a three-judge panel to postpone the recall election.

State officials and pro-recall forces agreed to file briefs by 2 p.m. today that could lead to a hearing by week's end on the ruling that found use of punch-card ballots in Los Angeles and five other counties was an unconstitutional violation of voters' rights because of the potential for errors.

But McCormack told the Board of Supervisors combining the recall election with the primary on March 2 would be even worse.

``Laying the recall election on top of the primary will create some questions and some confusion compared to the punch card system, which we've used for 35 years. This is what we're confronting.''

Her concerns prompted the supervisors to vote to authorize her to seek to file a friend of the court brief objecting to the election delay.

``The court ought to know that the consequences of this may be confusion and may lead to some errors,'' Supervisor Zev Yaroslavsky said.

``No. 1, that she will not have the capacity to run a seamless election next March, and No. 2, this whole debacle may have the effect of undermining public confidence in the electoral system. I think people are outraged by this, and that's not a good sign for public confidence in the electoral process.''

However, ACLU attorney Peter J. Eliasberg cast doubt on McCormack's statements and said plans for the Oct. 7 election with fewer polling places than normal gave it the look of a ``demolition derby.''

``I have to say that I don't feel that that claim rings true,'' he said.

``Imagine the people who are not going to be able to find their polling place, much less the lines that would exist,'' he said. ``I just find it hard to believe it will not be a more orderly process - not a train wreck.''

The new voting system to be used in March is called ``Inka Vote'' and requires voters to fill in a bubble on a ballot with a pen, like students do when taking standardized multiple-choice tests. The ballots are then tallied using an optical scanner, but errors occur because of multiple marks or incomplete marks like those caused by hanging or dimpled chads on punch cards.

The new voting system will confuse voters, McCormack said, and the 12- page ``Inka Vote'' ballot is too small to combine the 135 candidates on the recall ballot together with the presidential and legislative candidates and measures on the March ballot. So a second ballot will be needed, adding to the likelihood of errors, she added.

``We have used the same system in the county for 35 years. In March, we are looking at 100 percent of voters who are not familiar with the new voting system. I think it's logical to assume this is going to be confusing. We are looking at millions of voters confronting something new for the first time.''

In the 2000 presidential election in the county, McCormack said, there was a 2.7 percent error rate using the punch card system, a rate deemed acceptable in a 2001 CalTech/MIT report. In comparison, Chicago had an error rate of 9 percent in 2000.

The new system has had higher error rates in places where it's been used, including a 13 percent error rate in Georgia.

With the recall election already in chaos because of Monday's ruling, the full Ninth Circuit Court intervened before appeals could be filed with the U.S. Supreme Court.

The court in an unusual move asked both sides to present briefs today on whether the full court should rehear the case.

In its notice, the court wrote: ``The parties ... shall file simultaneous briefs not to exceed 15 pages or 7,000 words setting forth their views on whether or not this case should be reheard (by the full court.)''

California Secretary of State Kevin Shelley canceled a 2 p.m. press conference in Sacramento where he had been expected to announce a Supreme Court appeal, instead issuing a statement accepting the court's offer.

Shelley's press spokeswoman, Terri Carbaugh, said the brief will ask the court to hold the election on Oct. 7. She said all 26 judges will vote on whether to rehear the case before an 11-member panel.

``I believe it is in everyone's best interest that this case be heard swiftly and considered thoroughly, so the court can resolve these legal issues with the finality that the voters expect and deserve,'' Shelley said in the statement.

Thomas Hiltachk, a lawyer for the pro-recall group Rescue California, said he viewed the court's ``invitation'' as a ``positive development.''

``Hopefully it means the Ninth Circuit wants to review this decision itself, and hopefully reverse the erroneous decision by the three-judge panel.''

Cathy Catterson, clerk of court for the Ninth Circuit, said oral arguments are anticipated if the case moves ahead, based on how the court typically works in such cases, but that no decision has been made.

Mark Rosenbaum, legal director for the ACLU's Southern California chapter, said plaintiffs would file a brief arguing against the review.

``This is a very narrow decision, and would not be the basis for enjoining any regular election,'' Rosenbaum said.

Legal experts called the court's move ``unusual,'' and said it may have been taken by judges interested in their national reputation, and in demonstrating they were treating the recall seriously. At the same time, they said it gives defendants an opportunity for another - and potentially more sympathetic - hearing before the full court.

``It indicates the whole Ninth Circuit is considering this whole ball of wax very seriously, and they want to consider it as a whole and as quickly as they can,'' said Rory Little, a law professor at Hastings College of the Law in San Francisco.

``It's a court that understands the Oct. 7 date is approaching quickly and a serious bunch of judges need to do their part as quickly as they can.''

Little said the court - the nation's most liberal and most frequently overruled federal appeals court - may be worried about its reputation.

``They don't want to contribute to the caricature of the Ninth Circuit as some kind of a liberal joke. They want to act as good judges should act.''

Vikram Amar, also a law professor at Hastings College of the Law, said the action indicates some, or perhaps a number, of judges want the whole court to make the decision, not three judges.

``It is some sign the 9th Circuit might be amenable to considering it.''

Erwin Chemerinsky, USC law professor and an attorney for the plaintiffs, also called the court's action atypical.

``What's unusual is the court asked for it on its own, rather than the parties requesting it.''

The ACLU contended using punch-card ballots could result in up to 40,000 votes going uncounted. Defendants said that was pure speculation and if the election was close, the ballots could be recounted.

Staff Writer Harrison Sheppard contributed to this report.

Troy Anderson, [phone]

troy.anderson(at)dailynews.com