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Court readies for California recall appeal

Poll finds less support for ousting Davis

A new poll finds that support for recalling Gov. Gray Davis is slipping among likely voters.
A new poll finds that support for recalling Gov. Gray Davis is slipping among likely voters.

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California Recall
Gray Davis

LOS ANGELES, California (CNN) -- An 11-judge panel of the 9th U.S. Circuit Court of Appeals will hear arguments Monday over whether the state's gubernatorial recall election should be held as scheduled October 7 or postponed until March.

Meanwhile, a poll released Sunday by the Public Policy Institute of California showed support for recalling Democratic Gov. Gray Davis slipping, though 53 percent of likely voters still support tossing him from office.

In the race to replace Davis if he is recalled, the poll found Democratic Lt. Gov. Cruz Bustamante and GOP film star Arnold Schwarzenegger running neck-and-neck, though nearly one in five voters have yet to decide on a replacement candidate.

Last week, a three-judge panel of the 9th Circuit ordered the election postponed until March, saying error-prone punch-card systems would put voters in six counties at a disadvantage. Those counties, including Los Angeles, the state's largest, contain about 44 percent of the state's voters.

Elections officials were under court order to phase out punch-card balloting by the time of the March primary.

On Friday, the active judges on the 9th Circuit agreed to review the ruling of the three-judge panel. The 11 judges who will hear the case, chosen at random from among active judges in the circuit, include eight appointed by Democratic presidents and three appointed by Republican presidents. (Full story)

Seven members of the panel were appointed by former President Clinton, who has been in California campaigning with Davis against the recall.

Because of the strong public interest in the case, the 9th Circuit took the unusual step of allowing the hour-long hearing to be televised live, beginning at 1 p.m. (4 p.m. EDT). Cameras are rarely allowed in federal courts.

Attorneys for the American Civil Liberties Union, which brought the suit over the punch-card ballots on behalf of several minority rights groups, will get 30 minutes to argue their case for postponing the election.

Lawyers for Secretary of State Kevin Shelley, the state's chief elections official, and Ted Costa, head of the pro-recall group Rescue California, will split the remaining 30 minutes of argument to make their case that the vote should proceed as scheduled.

Davis campaign: Poll is encouraging

The Public Policy Institute's poll was conducted from September 9-17, which means some voters were interviewed before the three-judge panel postponed the election and all were interviewed before the 9th Circuit agreed to review that decision.

Among likely voters queried in the latest poll, 53 percent said they would vote to remove Davis from office and 42 percent would vote to keep him. Five percent were undecided.

A month ago in the same poll, 58 percent wanted to get rid of Davis and just 36 percent wanted to keep him, a gap of 22 percentage points. Six percent were undecided.

Other polls have also showed support for recalling Davis slipping, though he remains in danger of becoming the first U.S. governor removed from office by voters in 80 years. Nearly two-thirds of respondents in the latest poll said they disapproved of his job performance, and a similar percentage said they thought California was headed in the wrong direction.

But Davis spokesman Peter Ragone said the poll results were encouraging.

"The more people learn about this recall, the more they are inclined to vote against it," he said. "We still have some hill to climb, but we will keep hammering away until October 7th."

In the race to replace Davis if he is recalled, 28 percent of likely voters said they would vote for Bustamante and 26 percent for Schwarzenegger. But the difference fell within the poll's margin of error of plus or minus 3 percentage points.

Schwarzenegger spokesperson Ron Stutzman the poll results show it is a two-man race to replace Davis. "It's statistically a tie. We continue to lead in our tracking polls, so I feel very comfortable about that," he said.

Conservative GOP state Sen. Tom McClintock of Ventura County, who has been under pressure to get out of the race to improve Schwarzenegger's prospects, came in at 14 percent, up nine percentage points in the last month.

Green Party candidate Peter Camejo was the choice of 3 percent of likely voters in the poll, while independent media pundit Arianna Huffington was picked by just 2 percent.

However, the replacement race remains fluid, with 18 percent of likely voters saying they haven't made up their minds.

A debate Wednesday, sponsored by the California Broadcasters Association, could be a pivotal moment, the poll found. Two-thirds of likely voters said candidates' performances in that forum would be very or somewhat important in deciding how they will vote.

The CBA event is the only candidates' forum that Schwarzenegger has agreed to attend. It has generated controversy because candidates have been given questions in advance, though they will be able to debate back and forth after giving their answers.

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