- The Washington Times - Friday, September 19, 2003

SAN FRANCISCO (AP) — A federal appeals court announced yesterday it will reconsider a three-judge panel’s postponement of the Oct. 7 election, casting more uncertainty into the California recall campaign.

Without commenting on the merits, the 9th U.S. Circuit Court of Appeals said it would convene an 11-member panel to consider the timing of the vote on whether to recall Democratic Gov. Gray Davis. For the moment, yesterday’s action delays a likely appeal to the U.S. Supreme Court.

Arguments in the rehearing were set for Monday afternoon. The 11-judge panel, chosen by lottery, included eight judges appointed by Democrats, seven of them by President Clinton.

The circuit judges will reconsider the decision by a three-judge panel of the San Francisco-based appeals court, which ruled unanimously that the October date must be delayed to avoid forcing voters in six counties to use outdated punch-card machines in the election to unseat Mr. Davis.

Word of the rehearing came as Mr. Davis campaigned in Los Angeles with former Vice President Al Gore, in part to draw a connection between the special election and the circumstances of Mr. Gore’s own defeat in the 2000 presidential election.

Mr. Gore lost Florida — and the presidency — in a disputed election that made “hanging chads” a household term. Told about the ruling, Mr. Gore said, “I’ll have to read it.”

Said Mr. Davis: “I believe we will beat the recall on Oct. 7. My attitude is, let’s just get it 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.”

Ted Costa, one of the recall’s authors, said the court’s decision did not surprise him.

“They wanted briefs. They didn’t ask for that just for fun,” he said.

Citing the U.S. Supreme Court’s decision in Bush v. Gore, the panel ruled Monday that it was unacceptable that six counties would employ the same kind of error-prone ballots that prompted the “hanging chads” litigation in Florida’s 2000 presidential election.

The affected counties include Los Angeles, the state’s largest, and comprise more than 40 percent of California’s registered voters. Months ago, the counties had promised to upgrade to newer electronic voting machines in time for the March 2 statewide primary.

On Tuesday, without prodding from the litigants, the court blocked the ruling from taking force and asked the affected parties whether it should convene an 11-judge panel and rehear the lawsuit brought by the American Civil Liberties Union.

The action was reminiscent of June 2002, when a three-judge panel from the circuit declared the Pledge of Allegiance an unconstitutional endorsement of religion and banned its recitation in public schools. The following day, the court put the decision on permanent hold to allow for appeals. Ultimately, the court declined to rehear the case, which now is on appeal to the Supreme Court.

To rehear a case, a majority of the court’s 26 active judges must agree. The court rehears about a dozen cases each year, and usually reverses the original three-judge panel’s decision.

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