During a Thursday hearing, a three-judge panel of the 9th U.S. Circuit Court of Appeals seemed to agree that a punch-card system in six counties might be flawed. The justices' challenging questions to lawyers indicated they were considering halting the Oct. 7 election until the ballots are replaced.
Meanwhile, a Los Angeles Times poll released late Thursday found 47 percent of likely voters were inclined to vote against the recall, with 3 percent undecided. Half of all voters said they would support ousting the governor.
"Today's poll results confirm that support for the recall continues to fade," said Gabriel Sanchez, a spokesman for the Davis campaign. "As we ramp up our advertising and continue our town hall meetings, we're confident more and more Californians will reject this recall."
The telephone survey of 1,553 registered voters and 922 likely voters was conducted Sept. 6-10, a period when Republican Peter Ueberroth ended his candidacy. The margin of sampling error for likely voters was 3 percentage points.
Support for Lt. Gov. Cruz Bustamante, the only prominent Democrat in the field of 135 candidates seeking to replace Davis, slipped 5 percentage points from the August poll, to 30 percent of all likely voters.
All of the shifts from the August poll were near or within the current poll's margin of sampling error.
Conservative state Sen. Tom McClintock continued to gain on his more moderate fellow Republican, actor Arnold Schwarzenegger, with support from 18 percent of likely voters to Schwarzenegger's 25 percent. McClintock's support grew 6 percentage points since the August poll, while Schwarzenegger's grew 3 percentage points.
Some Republicans have called upon McClintock to exit the race, fearing a split in Republican votes would propel Bustamante. But McClintock has refused, and his bump in the recent poll could make it more difficult to argue that he should.
"The poll results are certainly great news, and we continue our surge and Schwarzenegger continues dead in the water," said Joe Giardiello, a spokesman for the McClintock campaign.
In a legal challenge reminiscent of the "hanging chads" dispute in the 2000 presidential election, lawyers for civil rights groups argued Thursday that a study showed 40,000 poor and minority voters might have their ballots excluded if punch-card ballots are used.
The groups want the recall delayed until next March, when newer and more reliable voting machines will be used throughout the state, reports CBS News Correspondent Steve Futterman.
Judge Harry Pregerson noted that the California secretary of state had found the punch-card system unacceptable because of errors.
"So we have to accept the unacceptable, is that what you're saying?" Pregerson asked lawyers representing the state.
Attorney Mark Rosenbaum, appearing for the American Civil Liberties Union, the NAACP, the Southern Christian Leadership Conference and the Southwest Voter Registration Education Project, told judges there are "grave federal interests" involving the Voting Rights Act and potential discrimination against poor and minority voters who may have difficulty with the punch-card ballots.
"Their votes will not be counted," Rosenbaum said. "Not only do we have vote dilution in these 40,000 cases, but we will have disenfranchisement."
Attorney Chuck Diamond, arguing for parties opposing a delay, said, "There is always a chance of error, but the Constitution does not require perfect elections. If it did, we wouldn't have any elections."
If the recall election is delayed, it could wind up on the March presidential primary ballot, a development which might benefit Davis since the primary is expected to draw large numbers of Democratic voters.