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Court Rehears Recall Arguments

California Recall: Californai Flag with the scales of justice, canidates Gray Davis, Cruz Bustamante, and Arnold Scwarzenegger
AP / CBS
A federal appeals court heard arguments Monday about whether to let California's gubernatorial recall election go forward on Oct. 7, sparring with a constitutional scholar on whether the Supreme Court's Bush v. Gore decision is grounds for postponing the vote.

Harvard University scholar Laurence Tribe, who argued for the Democrats in the Florida dispute that reached the Supreme Court in 2000, said allowing some counties to use error-prone punch-card ballots will cause thousands of votes to go uncounted.

Last week, a three-judge panel of the 9th U.S. Circuit Court of Appeals postponed the Oct. 7 election, repeatedly citing the Bush v. Gore ruling in which the Supreme Court halted the Florida recount because counties were using different standards to read the ballots.

But on Monday, Judges Diarmuid F. O'Scannlain and Alex Kozinski hardly let Tribe get a word out before questioning the lawsuit in the California case brought by the American Civil Liberties Union and other civil rights and minority groups.

"We don't have a Bush v. Gore problem," Kozinski said, noting that California does have the kinds of standards for ballot-counting that Florida lacked in 2000.

"It's a worse problem," replied Tribe, who is representing the ACLU. He added that under Bush v. Gore, punch-card ballots "are not lawful to use" no matter how uniformly they are counted.

Arguing for the state, Deputy Attorney General Douglas Woods said trial judge Stephen V. Wilson got the case right in mid-August when he rejected any postponement.

"Today, with this election ongoing, he is even more right," Woods said during the hour-long hearing.

Woods said even if Wilson incorrectly interpreted the law, the public interest still is in holding the election as scheduled on Oct. 7.

Kozinski asked Woods: "Do we have discretion or do we not have discretion" to overturn the trial judge?

"The court does not have discretion," Woods answered.

"I figured you'd say that," Kozinski responded.

There was no indication when the court would rule.

CBSNews.com Legal Analyst Andrew Cohen says it's always hard to tell which side is going to win based on oral arguments.

"But I think from the tone and tenor of the give and take between judge and attorney that the folks who want the recall in October rather than in March probably feel better about their position now than they did before the argument," Cohen says.

The 11 judges could either uphold the three-judge panel's ruling or overturn the decision, reinstating the Oct. 7 date. The losing side could then appeal to the U.S. Supreme Court.

The judges chosen for the new panel are more conservative than the three who made the original ruling, and some legal scholars said it was likely the earlier ruling would be overturned.

The election will determine the fate of Gov. Gray Davis, a Democrat who has suffered fallout from voters for his handling of the state's ailing economy. Lt. Gov. Cruz Bustamante is running as a fallback candidate if voters oust Davis, and Republicans Arnold Schwarzenegger and state Sen. Tom McClintock are also campaigning for Davis' job.

The legal dispute centers around six counties that still use the punch-card ballots that caused so much turmoil in Florida in 2000. The counties, including heavily populated Los Angeles County, were under a separate court order to replace the ballots with more modern systems by the state's March presidential primary.

The three-judge panel sided with the ACLU in deciding it would be better to hold the election in March than risk votes going uncounted on Oct. 7.

California election officials say the state constitution requires a recall vote to take place no more than 80 days after enough signatures have been collected to force a vote. Those signatures were certified in August, locking in the October date, they said.

Davis entered the week with new poll numbers showing he is gaining momentum.

A statewide poll by the Public Policy Institute of California released Sunday showed 53 percent of likely voters want to oust Davis, down from 58 percent last month. Forty-two percent said they would vote to keep him in office.

The same poll found 28 percent support for Bustamante, the only major Democrat among 135 candidates vying to replace Davis if he is recalled, and 26 percent for Schwarzenegger. It showed 14 percent backing Republican state Sen. Tom McClintock.

The poll of 1,033 likely voters conducted between Sept. 9-17 had a margin of error of plus or minus 3 percentage points.

The findings fueled new speculation about whether McClintock will get out of the race in order not to split the Republican vote and hand the election to Bustamante. McClintock has said he does not plan to quit.

Many of the lesser-known candidates, about 90 of them, planned to make their own grab at the national spotlight Monday by all sitting in the audience of "The Tonight Show with Jay Leno."