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California Supreme Court justices are expected today to decide whether they’ll wade into the legal fight over the Oct. 7 recall of Gov. Gray Davis. For the past several days, the justices have been considering five petitions attacking the election. Although they asked for briefs — which some took as a sign they’d take the cases — the justices still have not officially granted review. The court announced late Wednesday they would take action on the recall cases at around noon today. Some court watchers say the seven justices — six Republican appointees and one Democratic appointee — no doubt have the 2000 presidential election on their minds and will want to intervene before voters go to the polls. Lawyers who filed the petitions agree and say the justices need to do something to clarify the recall rules in order to avoid what they see as a Florida-style disaster. “If they were to deny summarily, they would be setting up a constitutional crisis,” said Jon Eisenberg of Horvitz & Levy in Oakland, who filed one of the petitions. Not settling matters before the election leaves open the possibility that more litigation could come later. Since three of the petitions raise issues regarding who would succeed as governor if Davis is recalled, post-election litigation could argue that the governor’s office is still up in the air. Eisenberg, like most of the other lawyers challenging the recall in state court, is a Democrat who has said he’s not working to forward some political agenda; he and the others say they just want voters’ rights upheld. Even so, Republicans have criticized the litigation and worry that it’s just a way of delaying the election until March, when many believe Davis has a better shot of retaining office. In taking the cases, the justices would be wading into a tangle of litigation with unclear political ramifications. When litigation over the historic recall was first filed, many court observers believed the court would try to dodge the bullet and avoid the repercussions of getting involved in a situation that grows stickier each day. Others believed from the get-go that the court cannot avoid intervening. Stephen Barnett, professor emeritus at Boalt Hall School of Law, said courts are more likely to take elections issues these days because of Florida. “The entire recall procedure hasn’t been litigated before,” Barnett said. “I think for the same reason the court will decide before the election.” Today, the court could decide to accept the cases or deny review. If they deny, justices could introduce another wrinkle: They could say that only the obscure Commission on the Governorship has standing to petition the court on issues related to the governor’s office. In papers filed with the court, Attorney General Bill Lockyer argued exactly that point of view. Although the commission’s chair, Senate President Pro Tem John Burton, D-San Francisco, has said he doesn’t believe the five-member panel can intervene, the court might disagree, said Hastings College of the Law professor Vikram Amar. The most recent recall petition claims that the speedy election violates the U.S. Constitution’s equal protection clause — an argument many elections experts believe is the Democrats’ best chance of ensuring voters do not recall Davis. That constitutional argument was put forth in a filing delivered to the high court Monday by a star-studded legal team hired by Davis that includes Robin Johansen of San Leandro’s Remcho, Johansen & Purcell; Michael Kahn, name partner at San Francisco’s Folger Levin & Kahn; and Stanford Law School Dean Kathleen Sullivan. Lockyer filed opposition in that case, Davis v. Shelley, S117921, Wednesday. The secretary of state’s office hired Meyers, Nave, Niback, Silver & Wilson of Oakland to help out the AG’s people because there’s such a time crunch. Replies in Davis v. Shelley are due today. Thomas Hiltachk, of Sacramento’s Bell, McAndrews, Hiltachk & Davidian, said the constitutional claims are “ridiculous.” He said election law allows the consolidation of polling places and other changes that Johansen’s suit claims will cause voter disen franchisement. Hiltachk’s firm, which has also worked for the California Republican Party, has filed amicus briefs in Johansen’s case and others before the court. Aside from Davis’ case, the other matters before the court are: � Frankel v. Shelley, S117770, which argues that Lt. Gov. Cruz Bustamante should automatically become governor if Davis is recalled. � Byrnes v. Bustamante, S117832, which makes nearly identical claims. � Burton v. Shelley, S117834, which alleges that Secretary of State Kevin Shelley issued the wrong requirements for contenders to get on the ballot. � Eisenberg v. Shelley, S117763, which seeks to remove two propositions from the recall ballot and put them on the same March ballot as the presidential primary. There are also at least three cases in U.S. District Court regarding the recall and another federal action in the pipeline.

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