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Calif. Waits For Recall Decision

The fate of the gubernatorial recall election was back in the hands of an appeals court as candidates ramped up their rhetoric in anticipation of a reversal that would reinstate the historic Oct. 7 vote.

Secretary of State Kevin Shelley asked the 9th U.S. Circuit Court of Appeals on Wednesday to overturn a three-judge panel's ruling earlier this week that postponed the vote, possibly until March 2.

Lawyers for Shelley said not holding the election as scheduled would produce a "constitutional crisis" and would be unfair to voters who have already cast absentee ballots.

"Moreover, the panel cannot downplay the injury to the public interest the order would inflict by saying they are just 'postponing the election for a few months,'" the lawyers wrote.

On Monday, a panel from the same court ruled that California's planned use of punch-card ballots — the same kind used in the contested 2000 presidential election — would disenfranchise thousands of Californians.

Also submitting a written brief, reports CBS News Correspondent Steve Futterman, was the registrar-recorder of voters for Los Angeles County, Conny McCormack, who said a delay until March could cause widespread confusion.

Shelley said the vote must go forward because 375,000 absentee votes have been cast, the state has sent out 2 million absentee ballots and California's 58 counties have mailed out 13 million election pamphlets.

That growing mountain of absentee ballots could be tossed out if the election is delayed, and waste $30 million in printing and postage costs, said Contra Costa County Clerk Stephen Weir.

Absentee voting in what could be a tight race worries both Democrat and Republican operatives, who fret about thousands of voters who won't be able to change their minds to meet late-changing circumstances.

For Democrats, the concern is that some voters who might be persuaded to keep Gov. Gray Davis in office have already cast absentee ballots to oust him. For some Republicans, the fear is that supporters of one candidate have already voted and aren't able to vote again if their candidate drops out.

The 9th Circuit is not expected to decide before Friday whether to appoint an 11-judge panel to rehear the case. While such hearings are extremely rare, they usually result in a reversal of the smaller panel's opinion.

"I don't place a lot of hope in the 9th Circuit Court, whether it's the three-judge panel or the full hearing," said conservative State Sen. Tom McClintock, one of the candidates to replace Davis.

Tom Hiltachk, a Rescue California lawyer, said it would be unprecedented for the full court to postpone the vote three weeks shy of Election Day. But he acknowledged that nothing is predictable in this campaign.

"The last couple of weeks have been like treading on quicksand," he said. "Just when you think the ground under you has firmed up a bit, it changes."

The latest judicial sideshow in the recall drama came as candidates appeared unwilling to risk letting the campaign trail grow cold. Voters are being asked if Davis should be ousted and who should replace him from a field of 135 candidates.

"If you're upset about the court's decision, I'm not wild about it either," Davis told a friendly audience at a question-and-answer session in Sacramento on Wednesday night.

At a debate in Los Angeles, Lt. Gov. Cruz Bustamante, the leading Democrat replacement candidate, elevated his criticism of actor Arnold Schwarzenegger, a Republican, for skipping the forum in favor of a later debate in which questions will be provided in advance.

Bustamante came under fire from McClintock, and independent columnist Arianna Huffington was accused of skirting campaign finance laws and accepting Indian casino money. Green Party candidate Peter Camejo also attended.

Schwarzenegger, denounced the debate as a warm-up to the "Super Bowl" next Wednesday at California State University at Sacramento. Earlier in the day, he welcomed newly sworn-in citizens in Los Angeles, and reminisced about the day 20 years ago when he became a U.S. citizen.

"I was so excited, so enthusiastic, that right afterward I went home and wrapped myself in a huge American flag," he said.

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