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COURT TO REVIEW RECALL
In a three-paragraph order, the 9th U.S. Circuit Court of Appeals announced that a majority of its members had voted to convene an 11-judge panel to take a fresh look at the decision to postpone the Oct. 7 election. While the development does not necessarily mean the ruling will be overturned, it is a strong indication that a majority of the court's members are troubled enough by the outcome to suggest that the recall might soon be back on track.
The majority of the 11 judges who will hear the case are Democratic appointees, but the panel is decidedly more conservative than the 9th Circuit as a whole, prompting legal experts to predict that the decision stalling the election will be short-lived and that the U.S. Supreme Court will not have to get directly involved in California's political tumult.
The appeals court has put the case on a fast track, scheduling arguments for Monday afternoon at the 9th Circuit's headquarters in San Francisco. Because of high interest in the case, the court also took the unusual step of allowing the hearing to be televised.
Gov. Gray Davis and the leading candidates vying to replace him if he is recalled appeared to enjoy a rare moment of bipartisan agreement in favor of going ahead with the election after the 9th Circuit's latest legal turn.
``Let's just have this election on Oct. 7, put this recall behind us so we can get on with governing the state of California,'' said Davis, who earlier this week welcomed the decision to delay the election.
California Secretary of State Kevin Shelley and recall advocates welcomed the decision to rehear the case with the 11-judge, or en banc, panel. Shelley again warned that a delay would be ``devastating'' because it would force some 500,000 absentee ballots already cast to be discarded and require officials to reopen the filing period for candidates.
``Never in the history of this country has an election been halted after the electoral process, specifically voting, has begun,'' Shelley said.
Nevertheless, attorneys for the American Civil Liberties Union, who brought the case on behalf of several plaintiffs, remained hopeful the delay would stand. The ACLU has argued that the use of punch-card ballots in six populous counties, including Santa Clara, would deprive those voters of their equal-protection rights because the rest of the state has abandoned punch cards in favor of more modern equipment.
``I think it's not surprising the court granted en banc review, given the importance of the issue,'' said Erwin Chemerinsky, a University of Southern California law professor who is assisting the ACLU.
The recall campaign took a stunning turn Monday after a three-judge 9th Circuit panel ruled unanimously that the election should be postponed until at least March, when the state will have permanently scrapped so-called ``hanging chad'' punch-card ballots under the terms of a prior court case. The court said the use of those ballots would produce a tarnished and unconstitutional election. Judges relied heavily in their ruling on the Supreme Court's ruling in Bush vs. Gore, which decided the 2000 presidential election by putting a halt to a ballot recount in Florida.
But with 23 judges eligible to vote -- three, including two of the court's leading liberals, recused themselves -- a majority of the court decided Friday to rehear the case and start from scratch under the en banc procedure. The vote is kept secret.
Using wooden balls engraved with the judges' names, 10 members of
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