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The Ninth Circuit U.S. Court of Appeals on Monday will reconsider its postponement of California’s Oct. 7 recall election. The court announced Friday morning that an 11-judge en banc panel, headed by Chief Judge Mary Schroeder, will decide whether six California counties can use punch cards in deciding whether to oust Gov. Gray Davis. This week a liberal-leaning panel ordered that no election be held until the state phased out the use of punch-card machines in the counties still using them. Under a previous settlement, the state agreed to do it by the March general election. None of the original three judges were drawn for Monday’s hearing. The panel will consist of the Jimmy Carter-appointed Schroeder and three Republican appointees — Judges Alex Kozinski, Diarmuid O’Scannlain and Andrew Kleinfeld. Bill Clinton appointees comprise the rest of the panel — A. Wallace Tashima, Barry Silverman, Susan Graber, Margaret McKeown, Ronald Gould, Richard Tallman and Johnnie Rawlinson. However, several of those are among Clinton’s more conservative picks. In a blow to the American Civil Liberties Union, which brought the case, three judges recused themselves — liberal stalwart Stephen Reinhardt and left-leaning judges Kim Wardlaw and Marsha Berzon. The court’s order noted that the call to rehear the case came from within the court. The judge who made the request is not known. No further briefing is scheduled. The day after the three-judge panel’s decision, the court asked for letters on whether the case should be reheard. The ACLU argued that it should go straight to the U.S. Supreme Court, while the state and intervenor Ted Costa, a recall proponent, argued for a rehearing at the court. More often than not, the Ninth Circuit reverses itself after deciding to rehear a case. Since the court stayed its ruling pending further orders, elections workers in California have continued working toward and Oct. 7 election. But lawyers working on the case noted that time is becoming an issue — the election is set for two weeks following the rehearing. Dave Gilliard, chief consultant to Rescue California Recall Gray Davis, said Friday that because the court voted for the en banc and scheduled arguments for Monday, though, “we think it’s certainly an indication it’s going to go our way.” However, if it looks like the Ninth Circuit is taking too long with the en banc , Gilliard said the group would also consider circumventing the court and asking U.S. Supreme Court justices to intervene. On the plaintiffs’ side, John Ulin, of Heller Ehrman White & McAuliffe, said asking the high court to intervene before the Ninth Circuit was finished would be “very unusual.” He said he was confident that the en banc would be ready long before Oct. 7, in case the panel decides to overturn the three-judge panel and allow the election to go as planned. “I think [the judges] understand they need to resolve it quickly,” Ulin said. Reporter Jason Hoppin’s e-mail address is [email protected] . Reporter Jeff Chorney’s e-mail address is [email protected] .

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