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Opponents and supporters of the California recall are holding their breath to see if — or, more likely, how — the Ninth Circuit U.S. Court of Appeals will tinker with the Oct. 7 election. Precise predictions are futile, but one thing is certain: The three-judge panel’s decision is likely to set off a frenzy of litigation, paling only in comparison to the 2000 Florida election. And with three weeks until the scheduled vote, all candidates’ eyes are on the Ninth Circuit panel that heard argument Thursday in the ACLU challenge premised on faulty punch-card ballot systems. “This was the court appearance that they’ve all been paying attention to,” said Cotchett, Pitre, Simon & McCarthy’s Joseph Cotchett, a consultant to Gov. Gray Davis in his effort to beat back the recall effort. A key question for the party that ends up on the losing end of the Ninth Circuit’s decision is whether to seek en banc review or head straight to the U.S. Supreme Court. O’Melveny & Myers partner Charles Diamond, a lawyer for intervenor Ted Costa, said that if his client loses, he will go straight to the Supreme Court, “given the time constraints.” Diamond said if the Ninth Circuit tells election workers to stop preparations, it could jeopardize the Oct. 7 date, even if the circuit is overruled within days. “If they are ordered to stand down, this election will not come off Oct. 7,” Diamond said. Hastings College of the Law professor Rory Little suggested that the losing party might want to appeal on both tracks at the same time. “You can file an en banc petition and a cert petition. It doesn’t happen all the time, and neither court likes it very much,” Little said. But, he said, it can save time. Little recommends against skipping the en banc. “You’d be silly to bypass that option,” he said, because the Supreme Court would then become the loser’s last chance. And there are no guarantees the high court would step in as it did in Bush v. Gore. As Hastings professor Vikram Amar said, “You don’t want to look like you’re intervening twice for a Republican.” Richard Hasen, an election law specialist and professor at Loyola Law School, is also skeptical of a cert petition. “I wouldn’t bet on the Supreme Court getting involved,” said Hasen, who filed a brief in support of the ACLU in the Ninth Circuit case. The case places Bush v. Gore front and center, something the court may be reluctant to tackle. The court recently declined to hear an appeal from the New Jersey Supreme Court over a candidate added late to a state Senate ballot. Bush v. Gore was also key in that case. So, the loser’s best hope may be en banc review. Several lawyers, including Cotchett, anticipate that recall proponents would pursue that option if the circuit delays the election. But whether the court could review the case in time for Oct. 7 is another question. Ninth Circuit clerk Cathy Catterson said it wouldn’t be impossible to expedite a hearing before an 11-judge panel drawn from the far-flung circuit. Though rare, the court has done so in death penalty cases. One possibility is to hear the case in a teleconference. “Obviously,” Catterson said, “it’s not something that happens every day.” If the recall proponents lose, an en banc bid may be especially attractive: The 11-judge panel can’t get any more liberal than the three left-of-center judges — Sidney Thomas, Harry Pregerson and Richard Paez — who heard Thursday’s case. Complicating litigation strategy for the parties is the possibility that the court could keep the recall on the calendar, but push back the initiatives. It wouldn’t be the California recall without one more twist, however. Justice Sandra Day O’Connor, who usually fields appeals from the Ninth Circuit, is leaving the country this weekend for a judicial conference in Bahrain. She will be out of town early next week, when the Ninth Circuit’s decision is expected. So the duty for reviewing cert petitions from the Ninth Circuit would apparently fall to the next junior justice. Who happens to be Antonin Scalia.

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