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Appeals court reinstates California recall vote

Gubernatorial election gets green light for October 7

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CNN's Bob Franken reports on the ACLU's decision not to appeal.
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With a date set for the recall, the Californian Republican Party wants to rally voters around one GOP candidate. CNN's Kelly Wallace reports
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California Recall
Gray Davis
Cruz Bustamante
Arnold Schwarzenegger

SAN FRANCISCO, California (CNN) -- Barring some unforeseen move, California voters will decide in two weeks whether to kick Democratic Gov. Gray Davis -- under fire for his stewardship of the state's economy -- out of office.

The state's unprecedented gubernatorial recall election got the green light Tuesday from the 9th U.S. Circuit Court of Appeals, which overturned last week's decision by a three-judge panel of the same court to postpone the October 7 vote until March.

The American Civil Liberties Union, which had sought the postponement, indicated it would not appeal Tuesday's ruling to the U.S. Supreme Court, suggesting the recall election is in the clear.

The unanimous ruling by an 11-judge panel of the 9th Circuit came less than 24 hours after a hearing at which the ACLU argued that the recall election should be delayed until March when some counties would be able to replace outdated and unreliable voting equipment.

But the judges rejected that claim, concluding that more harm would come from postponing the election than allowing it to move forward.

"There is no doubt that the right to vote is fundamental, but a federal court cannot lightly interfere with or enjoin a state election," the 11 judges ruled.

The judges said that "hundreds of thousands" of absentee voters already have cast their ballot and that the candidates have crafted their campaigns to coincide with the October 7 election.

"These investments of time, money and the exercise of citizenship rights cannot be returned," the ruling said.

The judges said the ACLU had raised some valid points, particularly as they relate to the claim that the use of punch-card ballots would disproportionately affect minority voters.

That machinery is used in six counties with large minority populations, and the six counties make up about 44 percent of registered voters.

But the judges said such a claim of voting mishaps was only a "possibility," not "a strong likelihood."

A coalition of civil rights groups originally had sought to delay the election in U.S. District Court, which denied the request.

But the three-judge appeals panel granted it last week -- a move that turned out to be short-lived with Tuesday's ruling.

As it stands, Californians will face a two-part vote on October 7. They will decide whether Davis should be ousted. They also will pick a replacement -- choosing from 135 names on the ballot -- in case Davis is recalled.

Voters also will consider two statewide initiatives: Proposition 53, a proposed constitutional amendment requiring that a portion of the state budget be set aside for infrastructure spending, and Proposition 54, a measure that would restrict the ability of government agencies to collect racial data.

Kevin Shelley, California's secretary of state and chief elections officer, commended the judges on what he said was "their carefully reasoned deliberation and -- perhaps most importantly -- swift opinion."

An aide to Lt. Gov. Cruz Bustamante -- who was required by the California Constitution to set the date for the election -- said her boss, the leading Democratic contender in the recall race, also was pleased that the decision was a quick one.

"There are many important issues facing Californians, and now we can move on and let the people decide who they want to lead them," said Lynn Montgomery, chief of staff for Bustamante.

A spokesman for Arnold Schwarzenegger, the leading Republican candidate, hailed the ruling as "good news."

"The election has been ongoing with absentee ballots, hundreds of thousands of votes have already been cast, and now is time to move on to Election Day on October 7," said spokesman Sean Walsh.

A spokesman for an anti-recall group suggested his organization would not pursue further legal appeals but called on officials to make sure the election would be fair.

"It is time to move forward, but it is now doubly important that counties do everything in their power to make sure every single vote is counted," said Peter Ragone, communications director for Californians Against the Costly Recall.

Meanwhile, the Republican congressman who financed the California recall effort says one of the party's leading candidates should quit the race to keep Bustamante from winning the seat, if Davis is ousted.

U.S. Rep. Darrell Issa, who represents portions of Southern California, said Tuesday Schwarzenegger or state Sen. Tom McClintock should get out of the race in the next two days, but he would not say which one he wants to stay in.

He said he would campaign against one of them if a split Republican vote threatened to give Bustamante the governorship if the recall effort succeeds.

"Both of them can do the math, and both of them don't want to be spoilers," said Issa, who put up more than $1 million of his own money to help organizers get the recall on the ballot.

"One of them has to make the right decision and has to make it in the next two days."

Meanwhile, Davis hit the campaign trail with another high-profile Democrat, part of a bid to cast the recall as some sort of national referendum.

Democrats are trying to depict the recall election as an effort by Republicans to overturn an election they could not win in November, when Davis was re-elected to a second term.

Davis held a news conference to discuss homeland security with Democratic presidential candidate Sen. Joe Lieberman of Connecticut in Santa Ana, while Schwarzenegger held a town hall meeting in Sacramento.

On Wednesday, the leading recall candidates -- including Schwarzenegger who has skipped earlier forums -- will gather for a debate.

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