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Federal appeals court may reconsider recall caseCampaigns continue despite delay
SAN FRANCISCO, California (CNN) -- California's wild gubernatorial recall race took another legal turn Tuesday with an announcement by the 9th Circuit Court of Appeals that it may hold an expanded hearing on a decision to delay the historic election. In an order, the federal court called on parties to file briefs by 2 p.m. ( 5 p.m. ET) Wednesday on whether a larger panel of 11 judges should hear the case. Monday, a smaller panel of three judges -- all Democratic appointees -- postponed the October 7 recall, saying outdated voting equipment would disenfranchise tens of thousands of voters, particularly minorities. Normally, parties that receive an adverse ruling from a federal appeals court panel can appeal to have the case heard "en banc," or by a larger panel. California Secretary of State Kevin Shelley, whose office is in charge of administering the election, said his office would file a brief with the 9th Circuit on whether the case should be reheard. "I believe it's 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. And one pro-recall group, which had indicated earlier its intention to go directly to the U.S. Supreme Court, said it would ask the 9th Circuit on Wednesday to reverse the decision of the three-judge panel or send the case to the nation's top court. "The people of California want and expect a recall election on October 7," Dave Gilliard, chief strategist for Rescue California, said in a written statement. "It is not fair to anyone for this process to be dragged out any longer." Meanwhile, the incumbent and candidates in California's gubernatorial recall election -- dubbed a "wild hatter's ride" by Gov. Gray Davis -- carried on with their campaigns Tuesday, despite the postponement, which, if upheld, could delay balloting until March. Davis campaigned with Democratic presidential hopeful Sen. Bob Graham in Los Angeles after former President Clinton stumped for him for two days. Graham told reporters that the recall "is strictly an effort by those who lost the election last November to recapture it." Davis predicted he would come out on top no matter when the recall election is held. "The courts will determine if the election is going to be postponed," Davis said. "Whenever the election is held, I hope that everyone wants to vote has the opportunity." Arnold Schwarzenegger, the leading Republican candidate to replace Davis, and state Sen. Tom McClintock met Tuesday with Ueberroth in hopes of securing his endorsement. Ueberroth was noncommittal on an endorsement, saying he would not endorse anyone until he had met with the other candidates, including Democratic Lt. Gov. Cruz Bustamante. Ueberroth dropped out of the race last week after a Field Poll showed him drawing just 8 percent of voters surveyed -- but that support could be crucial in a tight race against Democratic Lt. Gov. Cruz Bustamante, who has led Schwarzenegger by a narrow margin in recent polls, or against each other. Recall supporters angeredMonday's court ruling decision outraged advocates of the recall, originally set for October 7. "The losers in this process are the voters of California," state Republican Party spokesman Duf Sundheim said. "They want a change in this direction of this government, and that's who's losing by delaying this decision for months." The three-judge panel of the 9th Circuit ruled that holding the recall vote as scheduled would mean that 44 percent of state voters would be forced to use punch-card voting machines the secretary of state's office has declared unfit for future elections. Those machines could result in 40,000 ballots discarded, the court ruled. "Let's not forget what this is about -- every vote counts, and that's what the court decided, that people's ballots should be counted," said Bob Mulholland, a spokesman for the California Democratic Party. Davis had wanted the recall to be held in March, on the same ballot as the state's 2004 presidential primary, in order to boost turnout. The 9th Circuit has a reputation as the country's most liberal federal appellate court. Republicans called it the most-reversed court in the country and noted that in 2002, it ruled that the words "under God" in the Pledge of Allegiance represented an unconstitutional establishment of religion. "Three hundred thousand ballots already have been cast, and now this court -- which a few months ago declared the Pledge of Allegiance unconstitutional -- is stopping the election in mid-process. That's shameful and makes a mockery of the democratic process," Sundheim said. A federal judge ruled last month that the recall should take place as scheduled, rejecting arguments by the American Civil Liberties Union that the use of punch-card ballots would disproportionately disenfranchise minority voters in six populous counties. But the federal panel overturned that decision Monday, citing the U.S. Supreme Court's Bush v. Gore decision that settled the 2000 presidential election. "In sum, in assessing the public interest, the balance falls heavily in favor of postponing the election for a few months," the federal panel of the 9th Circuit concluded on Monday. David Cardwell, a CNN election law analyst, predicted Monday's decision would stand. The Supreme Court is not scheduled to return to session until October 6, the day before the recall had been scheduled to take place. And Cardwell, who was once head of the Florida Division of Elections, said the appellate court "really put it to the U.S. Supreme Court" by hanging its decision on the Bush v. Gore ruling. Investigation of Bustamante campaignIn related legal action, the state's elections watchdog group confirmed Tuesday it is investigating whether Bustamante improperly raised funds for his campaign. In a brief filed in Sacramento Superior Court, the Fair Political Practices Commission's (FPPC) legal counsel said the group "is currently undertaking an investigation of the conduct in this case to determine whether future Commission enforcement is warranted." The brief was submitted at the request of the judge presiding over the a lawsuit against Bustamante filed by state Sen. Ross Johnson, a Republican, who says Bustamante illegally accepted large donations from unions and Indian tribes. --CNN Correspondent Bob Franken contributed to this report.
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