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Recall Remains In Legal Limbo

California recall, flag of California, Gray Davis, Arnold and Cruz Bustamante
AP / CBS
In yet another twist in the back-and-forth saga of the state's recall vote, a federal court said it would re-examine a ruling by a panel of its own judges that postponed the ballot, pre-empting critics who were preparing to appeal directly to the U.S. Supreme Court.

Attention turned once again to the 9th U.S. Circuit Court of Appeals on Wednesday as state officials prepared to petition the whole court to overturn a three-judge panel that halted the Oct. 7 voting and suggested it could be folded into the March 2 presidential primary.

Secretary of State Kevin Shelley planned to file a brief asking all 11 judges of the circuit court to reinstate the Oct. 7 election date, said spokeswoman Terri Carbaugh.

"I believe it is in everyone's best interest that this case be heard swiftly and considered thoroughly so the court can resolve these legal issues with the finality that the voters expect and deserve," Shelley said in a statement.

The election date may be up in the air, but all of the candidates are pressing on as if the vote is still going forward in three weeks.

"We know that there will be appeals and that this matter will be reviewed and appealed," said Gov. Gray Davis, the object of the recall effort. "I'm just moving ahead."

On Wednesday, Davis was to escort Democratic presidential contenders through Southern California with an appearance scheduled with Sen. John Kerry of Massachusetts at a job training center in Los Angeles.

Lt. Gov. Cruz Bustamante, the front-runner in polls and the only prominent Democrat in the race if Davis gets recalled, was to participate in a debate sponsored by the Los Angeles Press Club with Republican Sen. Tom McClintock, independent columnist Arianna Huffington and Green Party candidate Peter Camejo.

On Tuesday, McClintock appeared with fellow Republican and former candidate Peter Ueberroth. The former Major League Baseball commissioner also met with actor Arnold Schwarzenegger. Both McClintock and Schwarzenegger were seeking Ueberroth's endorsement.

Ueberroth said he was impressed with both candidates, but planned to meet with Bustamante before making an endorsement. Ueberroth, who dropped out of the race last week because he didn't have time to get out his message, said he would not get back in the race if the election was delayed until March.

The full court's request for briefs on the issue Tuesday led the group that spearheaded the recall drive, which had not requested another hearing, to abandon its plan to appeal directly to the U.S. Supreme Court.

Thomas Hiltachk, a lawyer for Rescue California, said Tuesday's move was "a positive indication that a large number of judges in the 9th Circuit are questioning whether the decision yesterday ought to be upheld."

A legal expert said Tuesday's move probably will keep the Supreme Court out of California politics for now. "It most likely delays any Supreme Court action until the court acts," said Rory Little, a Hastings College of the Law professor who closely follows the appeals court.

The 9th Circuit has reconsidered other controversial rulings made by its three-judge panels, but it is rare, and it's even rarer for the court to reverse them. Judges can decide on their own to have an 11-judge panel rehear the case, or one of the parties in the case can request a rehearing.

Meantime, election officials say they can't handle the candidates on
the ballot if they combine it with a primary next March, reports .

"We have no software to count it and no system to count it and we're five months away from that election," says Los Angeles County registrar Conny McCormack.

In Monterey, former President Clinton again sharply criticized the recall during a talk organized by a think tank. He said the purpose of democratic elections was to give politicians several years in office to solve problems and make unpopular decisions.

"When my daughter was born, I got an 18-year term," Mr. Clinton joked. "It's a darn good thing we didn't have a recall provision. Our decisions didn't always suit her, but she turned out well."