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Court To Review Recall Delay

California recall, flag of California, Gray Davis, Arnold and Cruz Bustamante
AP / CBS
A federal appeals court announced Friday it will reconsider a three-judge panel's postponement of the Oct. 7 election, casting more uncertainty into the California recall campaign.

Without commenting on the merits, the 9th U.S. Circuit Court of Appeals said it would convene an 11-member panel to consider the timing of the vote on whether to recall Gov. Gray Davis. For the moment, Friday's action delays a likely appeal to the U.S. Supreme Court.

Arguments in the rehearing were set for Monday afternoon.

The circuit judges will reconsider the decision by a three-judge panel of the San Francisco-based appeals court, which ruled unanimously that the October date must be delayed to avoid forcing voters in six counties to use outdated punch-card machines in the election to unseat Davis, a Democrat.

CBSNews.com Legal Analyst Andrew Cohen said the decision to review the ruling doesn't necessarily mean the Oct. 7 election date will be reinstated.

"The larger panel could affirm the decision that has delayed the recall election, or overturn it, or somehow modify it. And either way there is likely to be another appeal to the U.S. Supreme Court," Cohen said.

Cohen added: "There will now be another round of briefing and an oral argument followed by a very quick ruling from the 11 judges. I wouldn't be surprised if this part of this story actually is resolved before the end of next week, which would allow the losing side to appeal to the Supreme Court before Oct. 7."

Word of the rehearing came as Davis campaigned in Los Angeles with former Vice President Al Gore, in part to draw a connection between the special election and the circumstances of Gore's own defeat in the 2000 presidential election.

Gore lost Florida — and thus the presidency — in a disputed election that made "hanging chads" a household term. Told about the ruling, Gore said, "I'll have to read it."

Said Davis: "I believe we will beat the recall on Oct. 7. My attitude is, let's just get it over with, 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."

Ted Costa, one of the recall's authors, said the court's decision did not surprise him.

"They wanted briefs — they didn't ask for that just for fun," he said.

Citing the U.S. Supreme Court's decision in Bush v. Gore, the panel ruled Monday that it was unacceptable that six counties would employ the same kind of error-prone ballots that prompted the "hanging chads" litigation in Florida's 2000 presidential election.

The affected counties include Los Angeles, the state's largest, and represent more than 40 percent of California's registered voters. Months ago, the counties had promised to upgrade to newer, electronic voting machines in time for the March 2 statewide primary.

On Tuesday, without prodding from the litigants, the court blocked the ruling from taking force and asked the affected parties whether it should convene an 11-judge panel and rehear the lawsuit brought by the American Civil Liberties Union.

The action was reminiscent of June 2002, when a three-judge panel from the circuit declared the Pledge of Allegiance an unconstitutional endorsement of religion and banned its recitation in public schools. The following day, the court put the decision on permanent hold to allow for appeals. Ultimately, the court declined to rehear the case, which now is on appeal to the Supreme Court.

To rehear a case, a majority of the court's 26 active judges must agree.

Chief Judge Mary Schroeder, by court rules, will head the recall panel. Ten other judges will be drawn at random. The three judges whose Monday ruling is the subject of the rehearing, all appointed by Democratic presidents, are eligible for the drawing. Three judges have recused themselves.

The court rehears about a dozen cases each year, and usually reverses the original three-judge panel's decision.

Secretary of State Kevin Shelley urged the appeals court to rehear the case, arguing the California Constitution requires recall elections to be held no later than 80 days after enough signatures of registered voters are gathered