SAN FRANCISCO – The 9th Circuit Court of Appeals (search) collected legal briefs Wednesday from parties petitioning it to take the unusual step of overruling a decision by its own three-judge panel to postpone California's recall election.
Secretary of State Kevin Shelley (search) filed a brief asking for an 11-judge panel to be appointed to reinstate the Oct. 7 date, saying to do otherwise would violate the state constitution's direction to hold the election within 80 days of certifying the signatures petitioning for it.
"The irreparable harm to the state from the panel's injunction includes not only the inability to fulfill its mandated duty to proceed with the ongoing election, but also the destruction of the state's interest in neutral, general application of the election schedule requirements," Shelley wrote.
Shelley said the vote must go forward because thousands of absentee voters have already been mailing in their ballots, reflecting their decisions whether to recall and replace Gov. Gray Davis (search).
The state has already sent out two million absentee ballots to voters, he said, and California's 58 counties have mailed out sample ballots and 13 million ballot pamphlets.
The American Civil Liberties Union, which sued for the delay, also filed a brief. It said the court should let the panel's decision stand because as many as 40,000 voters could be disenfranchised as a result of defective punch-card ballot machines, which are believed to have a higher error rate.
"The panel did a remarkable job, with remarkable speed, and it got the law right," the ACLU said.
The civil rights group said it would violate the constitution to permit "this flawed special election to go forward in the interests of speed and claimed financial hardship though it is known beforehand that 40,000 votes will be discarded."
A hearing could be held by week's end.
How swiftly the full court will act -- both on whether to reconsider the case at all as well as whether to overturn the earlier decision -- remains to be seen. But backers of the recall say they will go to the Supreme Court to seek relief at the first sign of dithering by the court.
Monday's ruling by the three judges was based on the presumption, citing the U.S. Supreme Court's Bush v. Gore (search) decision that halted the 2000 Florida vote recount, that punch-card ballots (search), which are still used by some California counties, were inherently less accurate than other forms of voting.
The judges did not give a time for the new election, but said the ACLU's suggestion that it be folded into the March 2 presidential primary would give counties enough time to update their voting machines.
On Tuesday, the federal court said it could re-examine a ruling by a panel of its own judges that postponed the ballot, pre-empting critics who were preparing to appeal directly to the U.S. Supreme Court.
Lawyers for Ted Costa, whose group Rescue California helped organize the recall, said the panel's ruling is flawed because the voting machines weren't the subject of the Bush v. Gore case, the state courts' orders for recounting the votes was the problem.
"Bush v. Gore did not address whether Florida's use of punch-card voting systems violated the Equal Protection Clause, but only the constitutionality of the Florida Supreme Court's recount procedures for punch-card ballots," the lawyers said in their brief.
As the legal process went its course, the campaigns continued, but lacked the intensity that normally surrounds an election scheduled less than three weeks away.
Presidential hopeful Sen. John Kerry of Massachusetts joined Davis for a tour of a facility that helps wayward veterans get back on their feet. Both men are veterans.
Kerry's visit was just the latest in a string of visits from Democratic leaders and presidential wanna-bes.
"This recall is an abuse of the democratic process and I hope Californians will reject it and say no," Kerry said.
Afterward Davis saluted party heavyweights trying to keep him on his feet.
"I'm proud that President Clinton and Jesse Jackson, Senator Graham and now Senator Kerry and Senator Edwards later in the week and Vice President Gore have come out to amplify that message because they are all respected and they all have their own credibility in this state," Davis said.
Recent Davis appearances with Clinton and Jackson were designed to ramp up black support, a telltale sign that Davis still hasn't energized his base. Polls show that African-Americans are the only defined demographic group in California opposed to recalling Davis.
Jackson told Fox News that even though 2 million Californians signed petitions ordering a recall, the use of punch-card ballots could mean some votes might not be counted. That, he said, justifies postponing an election mandated by the constitution.
"We have had, historically, some bad constitutional law, and so constitutional law is not always a law that is morally right. But assuming that this law stands, we should still have an even playing field at voting time," he said.
Recent polls show Davis has gained some momentum of late, though Democratic sources told Fox News that internal polls continue to show Davis losing the recall vote by as much as 15 percent.
Still, Republicans are concerned that Davis could survive the vote.
"We need to push as hard as we can because you know the polls are showing that Davis is picking up ground, and having tried to recall Davis myself for two-and-a-half years, I'd sure hate to lose," said GOP millionaire Bill Simon, who lost to Davis in the gubernatorial election last November.
Simon, who bid early to recall Davis, but later dropped out, said he won't re-enter the race even if the election is postponed.
"When I withdrew, I withdrew because there were too many Republicans, and I still think there are too many Republicans," he said.
Republican front-runner Arnold Schwarzenegger greeted immigrants who just took their oath of citizenship. The sparse crowd did not dampen Schwarzenegger's enthusiasm.
"I have faith in you guys. I have faith in California. I believe in California, and I know we can turn this state around," he said.
Fox News' Major Garrett and The Associated Press contributed to this report.
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