Court will reconsider delay of Calif. recall

By Lyle Denniston and Anne E. Kornblut, Globe Correspondent and Globe Staff, 9/20/2003

LOS ANGELES -- A federal appeals court voted yesterday to reconsider a ruling that would have postponed the California recall election, delaying until at least next week a final decision on when the controversial balloting will occur.

The decision by the US Court of Appeals for the Ninth Circuit threw an already confused election into further chaos. The court set aside a ruling by a three-judge panel that wanted to delay the balloting over concerns that outdated voting machines in six counties would produce a flawed vote count. That decision probably would have delayed the election scheduled for Oct. 7 until March.

Eleven judges will take up the issue anew at a Monday afternoon hearing in San Francisco.

Three leading candidates -- Governor Gray Davis, the target of the recall effort; Lieutenant Governor Cruz M. Bustamante and Republican actor Arnold Schwarzenegger -- predicted that the Ninth Circuit will overturn its three-judge panel. Advisers on all sides said they hope the election will take place on Oct. 7. Davis, who had earlier challenged the recall effort in court, said yesterday that he wanted to get the election "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," Davis said while campaigning with former vice president Al Gore in Los Angeles. Davis and California Democrats have repeatedly likened the state recall effort to the 2000 ballot dispute in Florida, which Gore lost.

"The people who want to see this recall take place are disrespecting the majority of Californians who voted in the election last year," Gore said yesterday.

Over the weekend, Davis is expected to campaign with another national Democrat, Senator John Edwards of North Carolina, who is running for president. The 11 judges chosen at random to hear the case on Monday include "many of the court's more conservative judges," according to Howard Bashman, a Philadelphia lawyer who specializes in appellate law and has been closely following the recall dispute. The makeup of the panel, he said, is being interpreted in California as a sign that the full court may be inclined to allow the election to proceed.

By contrast, the three judges who voted on Monday to delay balloting were among the appeals court's most liberal members. They found that the use of outdated punch-card voting in six of the state's largest counties would constitute unequal treatment of voters since those counties would not have new, more reliable voting systems installed until the state's primary elections in March.

The appeals court is expected to rule quickly, but both sides have indicated they will seek Supreme Court intervention if they lose. Legal scholars and other court observers are skeptical that the high court will take up the case, in part because the timetable for the vote is growing short.

As of today, only 17 days remain for state and local election officials to complete arrangements for a vote Oct. 7, and for final campaigning by the long list of candidates seeking to replace Davis if he is recalled. Voters will be asked first whether to oust Davis and then, if that happens, which of 135 candidates should become governor.

"We need to know if this election is going to be held, in October or March," said Daniel H. Lowenstein, a law professor who teaches election law at the University of California at Los Angeles. "With each day, the counties are making great efforts to implement this election. Getting a decision promptly is more important than anything else." State and county election officials and supporters of the Davis recall proposal asked the full appeals court to rehear the dispute and then allow the election to occur as scheduled. Since 23 judges voted on the issue, at least 12 had to agree to reconsideration. The court did not reveal how its members voted, or give an explanation for the action. Under court rules, a rehearing by the full, or "en banc," court is done by only 11 judges, selected from the active judges' roster.Meanwhile, on the campaign trail, the candidates continued to spar over the terms of a debate next week in Sacramento -- the only debate in which Schwarzenegger has agreed to participate. Bustamante and Tom McClintock, a conservative Republican, are threatening to boycott the event if the sponsors do not make the format more spontaneous. Under the current terms, candidates will be expected to answer some of the 12 questions the sponsors published earlier this week. But Schwarzenegger's advisers said he will take part in that debate, and that debate only, regardless of who else attends.

Denniston reported from Washington and Kornblut reported from Los Angeles.