In an unusual step, the federal appeals court that turned California politics upside down by postponing the Oct. 7 recall election signaled that it may be willing to reconsider.
The 9th US Circuit Court of Appeals asked California election officials and recall proponents to file briefs by yesterday afternoon on whether they want an 11-judge panel to reconsider Monday's ruling by a three-judge panel.
If the court decides to grant a new hearing, the 11 judges can uphold the original ruling to delay the election or overturn it and restore the Oct. 7 date. The losing party can then appeal to the US Supreme Court.
Tuesday's decision came a day after the three-judge panel noted that as many as 40,000 votes may not get counted in the recall vote because six California counties still use error-prone punch-card ballots -- the same system that sent the 2000 presidential race into chaos. In making its ruling, the panel leaned heavily on the Bush v. Gore case that effectively decided the 2000 election.
The judges agreed with the American Civil Liberties Union that the recall could be decided during the regularly scheduled March 2 presidential primary. The counties, including the state's most populous, Los Angeles, are under a separate court order to upgrade to more reliable machines in time for the primary.
The recall will decide the fate of Governor Gray Davis, who has been dogged by his handling of the state's sagging economy and energy crisis. More than 100 candidates are running on the recall ballot to replace Davis, including Democratic Lieutenant Governor Cruz Bustamante, action hero Arnold Schwarzenegger and conservative state Senator Tom McClintock.
The two-part ballot was to ask first whether Davis should be recalled, and then would ask voters to chose among the candidates vying to replace him.
Secretary of State Kevin Shelley, the state's top election official, planned to ask the court to overturn the ruling and reinstate the election date.
"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.
Thomas Hiltachk, a lawyer for a group backing the recall, said Tuesday's move was "a positive indication that a large number of judges in the 9th Circuit are questioning whether the decision yesterday ought to be upheld."
He said that if the 11-judge panel fails to overturn the ruling, his group would go to the Supreme Court.
The 9th Circuit has reconsidered other controversial rulings made by its three-judge panels, but it is rare. It's even rarer for the court to reverse them. Judges can decide on their own to have an 11-judge panel rehear the case, or one of the parties in the case can request a rehearing.
Tuesday's decision came as a surprise because the group that spearheaded the recall drive did not request another hearing and instead was expected to appeal directly to the US Supreme Court.
The candidates struggled Tuesday to focus their campaigns in the shadow of uncertainty.
Davis appeared with national Democrats as Schwarzenegger and McClintock sought the support of fellow Republican Peter Ueberroth, who dropped out of the campaign last week.
Bustamante, the only major Democrat vying to succeed Davis should voters recall the governor, made few references to the ruling as environmental groups reiterated their endorsement of him in San Francisco.
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