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Full federal appeals court to consider whether to examine recall ruling by three-judge panel

SAN FRANCISCO — A federal appeals court said today it will consider whether to re-examine its three-judge panel's postponement of the California recall election.

The 9th U.S. Circuit Court of Appeals asked California election officials and recall proponents to file briefs by Wednesday afternoon on whether they want all 11 judges on the appeals court to rehear the case.

For now, the election on whether Gov. Gray Davis should be recalled remains on hold, under Monday's decision by the three-judge panel.

The move could keep the U.S. Supreme Court out of the fray of California's recall politics for the time being, experts said. On controversial cases, the court has been known to rehear three-judge panel decisions with 11 judges.

"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.

The three-judge panel had ruled Monday that six counties' planned use of punch-card ballots in the Oct. 7 vote — the same kind used in the contested 2000 presidential election in Florida — would disenfranchise thousands of Californians.

The court did not set a new date for the recall, but backed a suggestion from the American Civil Liberties Union that balloting be held during the March 2 presidential primary. By that time, the six counties, including Los Angeles, will have replaced the machines under a court order stemming from separate litigation.

California's top elections official had planned to announce this afternoon whether he would appeal Monday's ruling, which outraged recall supporters.

It was not immediately clear how today's decision by the appeals court would affect Secretary of State Kevin Shelley's decision. His office did not immediately return a call seeking comment.

One of the groups behind the effort to yank Davis from office had already planned to appeal to the U.S. Supreme Court to keep the recall date Oct. 7. The appeals court panel's decision was stayed for a week to allow for such appeals.

Thomas Hiltachk, a lawyer for Rescue California, said today'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."

Lt. Gov. Cruz Bustamante, the only major Democrat vying to succeed Davis if he is recalled, and leading Republican candidate Arnold Schwarzenegger had promised to continue campaigning as the courts decide when to hold the election.

Schwarzenegger and Republican state Sen. Tom McClintock were to seek the blessing of fellow Republican Peter Ueberroth, who dropped out of the running last week.

"This recall has been like a roller coaster. There are more surprises than you can possibly imagine," Davis said. "I'll continue to make my case to the people that a recall is not good for them."

Independent candidate Arianna Huffington praised the decision, calling voter disenfranchisement "the dirty little secret of American politics." McClintock called it an "outrageous decision" by a court that is the "laughingstock" of the federal judiciary because it is the nation's most-reversed federal appeals court.

Sean Walsh, a spokesman for Schwarzenegger, said the decision threatened to rob voters who had signed recall petitions. "With this ruling, you risk disenfranchising voters. Does this serve the interests of democracy or the general public?"

The panel repeatedly referred to Bush v. Gore — the case that decided the 2000 presidential election — as its primary rationale. In that case, the Supreme Court stopped Florida's recount on the grounds that all votes were not being treated equally.

The appeals court unanimously ruled it is unacceptable that six California counties would be using outdated punch-card ballots. Those counties are already under court order to replace punch cards with more modern systems such as touch-screen ballots by the March primary.

The six counties include the state's most populous, Los Angeles, as well as Sacramento and San Diego counties. Altogether they contained 44 percent of California's registered voters during the 2000 election.

Davis would probably benefit the most from the ruling if the election were held in March, because the presidential primary is expected to bring a large number of Democrats to the polls. It could also give Davis more time to address the state's budget crisis.

Observers say a potential postponement could have the sharpest impact on McClintock, who has shown momentum in the polls in recent weeks. McClintock has raised much less money than the other major candidates and would likely lose the high level of media coverage that has largely buoyed his candidacy.

"The political impact of the ruling is the law of unintended consequences," said Republican analyst Allan Hoffenblum. "It could mandate opening up the filing process again, so we'll have more candidates. People who dropped out could drop back in. Tom McClintock would be seriously impacted."

The California official responsible for elections, Secretary of State Kevin Shelley, told county election officials to prepare for the Oct. 7 election and said he would announce today whether he would ask the entire appeals court to review the ruling or appeal directly to the Supreme Court.

Voters reacted with mixed feelings about the decision.

"I don't like things when they are rushed. It's ridiculous, the wide field of candidates, the short election," said Vana Meydag, 50, of Whittier. "Maybe postponing is a good thing to give people time to reflect on what's going on."

Scott Fox, 47, of San Diego, was insulted. "I think the 9th Circuit Court of Appeals has just told us that the last 25 years of elections are inadequate to support the election of any candidates," he said.


On the Net:

The decision: www.ca9.uscourts.gov