Full court may examine recall ruling

SAN FRANCISCO -- In an unusual step, the federal appeals court that turned California politics upside down by postponing the Oct. 7 recall election signaled Tuesday that it may be willing to reconsider.

The 9th U.S. Circuit Court of Appeals asked California election officials and recall proponents to file briefs by this 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 U.S. Supreme Court.

Tuesday's decision came a day after the three-judge panel ruled that as many as 40,000 votes may not get counted in the recall election because six California counties still use 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 The counties, including the state's most populous, Los Angeles, are under a separate court order to replace their outdated machines by the primary.

The recall will decide the fate of Gov. Gray Davis, who has been dogged by his handling of the state's sagging economy and energy crisis. Several candidates are running on the recall ballot to replace Davis, including Democratic Lt. Gov. Cruz Bustamante, action hero Arnold Schwarzenegger and conservative state Sen. Tom McClintock.

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, said spokeswoman Terri Carbaugh.

'Positive indication'

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."

A spokesman for California Attorney General Bill Lockyer, who would be responsible for filing any appeal to the Supreme Court on behalf of the state of California, had no immediate comment.

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 U.S. Supreme Court.

A legal expert said Tuesday's move probably will keep the Supreme Court out of California politics for now.

"This probably means that the Supreme Court will not intervene until the appeals court says what it is going to do," said Rory Little, a Hastings College of the Law professor who closely follows the appeals court. "It most likely delays any Supreme Court action until the court acts."

The candidates struggled Tuesday to focus their campaigns in the shadow of uncertainty.

Gov. Gray 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.