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Recall Heads Back To Court

California recall, flag of California, Gray Davis, Arnold and Cruz Bustamante
AP / CBS
A federal appeals court said Tuesday it will consider whether to re-examine its three-judge panel's postponement of the Oct. 7 California recall election.

The 9th U.S. Circuit Court of Appeals asked California election officials and recall proponents to file briefs by Wednesday afternoon on whether they want all 11 judges on the appeals court to rehear the case.

For now, the election remains on hold, under Monday's decision by the three-judge panel that said the use of punch-card ballots — the same kind used in the contested 2000 presidential election in Florida — would disenfranchise thousands of Californians.

The move could keep the U.S. Supreme Court out of the fray of California's recall politics for the time being, experts said.

Some recall supporters would rather skip the 9th Circuit Court, which has a reputation as the country's most liberal, and go straight to the Supreme Court.

"They're doing what appears to me to be mischief, I think. And I hope the U.S. Supreme Court will take that into consideration," said Ted Costa, head of the Sacramento-based Peoples' Advocate.

But there's no guarantee the high court will hear another high-stakes election case, reports CBS News Correspondent Jerry Bowen.

"I just don't think the Supreme Court wants to revisit the issues of Bush versus Gore. I don't think they want to become involved in another controversial decision," said U.S.C. legal analyst Elizabeth Garrett.

Meantime, California's beleaguered governor, Gray Davis, got a campaign assist from a presidential hopeful from a state where the legend of hanging chads was born. Florida Sen. Bob Graham says it's a nightmare worth avoiding.

"It is my honor to be here on behalf of sanity in California," said Graham, D-Fla.

And who does the delay help? Conventional wisdom says Davis benefits the most and Republicans the least.

But, warns Davis, "In this wild hatter ride the conventional wisdom has turned out to be wrong almost every time."

California's top elections official had planned to announce Tuesday afternoon whether he would appeal Monday's ruling, which outraged recall supporters. It was not immediately clear how Tuesday's decision by the appeals court would affect Secretary of State Kevin Shelley's decision.

Meanwhile, the major candidates were acting as if the election is still on.

"We are going to continue campaigning," said leading Republican contender Arnold Schwarzenegger, who had a town-hall meeting planned for Wednesday.

Schwarzenegger and GOP state Sen. Tom McClintock were also seeking the endorsement of fellow Republican Peter Ueberroth, who dropped out of the running last week.

In its ruling, the three-judge panel ruled it is unacceptable that six California counties would be using outdated punch-card ballots. Those counties are already under court order to replace punch cards with more modern systems such as touch-screen ballots by the March primary.

The six counties include the state's most populous, Los Angeles, as well as Sacramento and San Diego counties. Altogether they contained 44 percent of California's registered voters during the 2000 election.