SAN FRANCISCO, California (CNN) — A panel of federal judges is expected to rule Tuesday on whether California’s gubernatorial election may be held as scheduled next month or postponed until March.

The 11 judges of the 9th U.S. Circuit Court of Appeals peppered lawyers for both sides of the issue with questions for an hour Monday, pushing them to explain how punch-card voting systems used in six California counties would disenfranchise voters, as the pro-postponement side argued.

They also asked whether the punch-card error rate is significant enough to require the vote to be postponed until March, when a newer voting system is scheduled to be in place.

Last week, a three-judge panel of the same court ordered the election postponed until March, saying the punch-card systems would disadvantage those voters who use them.

The six counties, including Los Angeles, the state’s largest, have about 44 percent of the state’s voters.

The panel’s decision is expected sometime Tuesday morning, according to the court clerk’s office.

Arguing for the postponement Monday was Mark Rosenbaum of the American Civil Liberties Union of Southern California and Harvard Law School professor Laurence Tribe.

“The error experienced with these now-notorious ballots, even after human beings look at them, is so great that they are not lawful to use once they’ve been deemed deficient and outmoded,” Tribe told the judges.

Tribe cited the state’s Proposition 41, approved by voters last year, which authorized improvements in voting systems statewide.

The secretary of state, who pushed for the measure, urged that punch-card systems be replaced “as soon as possible” because of the errors in voting they produce.

The proposition set a March 2004 deadline for new systems to be in place.

Using the punch-card systems instead of more advanced touch-screen voting systems or optical scanners, Tribe argued, at the very least undermines the confidence of voters when they make their selections on a ballot.

“We’re not counting sheep, we’re counting votes, and it matters that people do or don’t have confidence,” said Tribe, who argued for the Democrats before the Supreme Court in the 2000 presidential election dispute.

‘Reasonably practical’ method
Douglas Woods, the state’s deputy attorney general, and Charles Diamond, a lawyer for the pro-recall group Rescue California, argued against the postponement.

They said the error rate of punch-card systems is comparable to that of other systems.

Diamond said the secretary of state “emphatically, emphatically avoided saying that punch cards were defective or unreliable or inaccurate or not trustworthy” when he pushed for modernizing voting systems.

Speaking to reporters after the court session, Diamond said errors with current punch-card systems don’t constitute “intentional discrimination” and that punch cards remain a “reasonably practical” method of voting.

“I think what the court indicated strongly today is suspicion of the plaintiff’s case that, in fact, punch-card voting is at all unreliable,” Diamond said.

He said he believed the court would not call off the election “simply based on a claim — and one that I think they’ll toss out as flimsy — that a couple of votes might be lost because of mechanical difficulties.”

Rosenbaum said his figures show that one of every 25 voters in the six California counties will fail to have their votes counted because of errors with punch-card systems.

“It’s like putting a sign up there,” he said. “Every 25th person doesn’t need to vote.”

Judge Diarmuid O’Scannlain then pointed out that moving the election to March would require throwing out the 500,000 absentee ballots already submitted for the October 7 vote, thus disenfranchising those voters.

“The other way around, your honor,” Rosenbaum said. “If the election goes forward on October 7, with the knowledge that one out of every 25 minority votes in those counties will not count, then we are treating votes like refuse.”

Requiring absentee voters to recast their ballots amounts to an inconvenience compared with actual disenfranchisement for those voters whose ballots are disqualified because of voting errors, Rosenbaum said.

Rosenbaum also focused on the fact that Proposition 54, a ballot initiative dealing with questions of race, is due to appear on the October ballot.

Problems with voting, he said, would further disenfranchise voters deciding on the issue.

Proposition 54 would prohibit the government from classifying any person by race, ethnicity, color, or national origin.

It was originally scheduled to be on the March ballot but was moved up to the October election.

Judges chosen at random
The election to replace Gov. Gray Davis, a Democrat, will first ask voters whether they want to recall him. The ballot then asks voters which candidate they would like to replace him.

A poll released Sunday by the Public Policy Institute of California showed support for the recall slipping, although 53 percent of likely voters said they still support it.

The poll also found Democratic Lt. Gov. Cruz Bustamante and film star Arnold Schwarzenegger, a Republican, running neck-and-neck, though nearly one in five voters has yet to decide on a replacement candidate.

The 11 judges were chosen at random from among active judges on the 9th Circuit. They include eight appointed by Democratic presidents and three appointed by Republican presidents.

Seven were appointed by then-President Bill Clinton, who has been in California campaigning with Davis against the recall.

Bowing to the strong public interest in the case, the 9th Circuit took the unusual step of allowing Monday’s hearing to be televised live. Cameras are rarely allowed in federal courts.

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