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The 9th U.S. Circuit Court of Appeals on Tuesday signaled that the full court would reconsider the decision to postpone California’s Oct. 7 recall election. In a brief order, the court asked for letters by 2 p.m. today on whether it should convene an 11-judge en banc panel in the case, effectively heading off — at least for the time being — U.S. Supreme Court intervention. It also started a mad scramble that had Secretary of State Kevin Shelley canceling a press conference and 9th Circuit judges wondering whether they should cancel flights home. “I am immediately complying with the offer from the Ninth Circuit for briefs on whether or not this case should be reheard,” Shelley said in a statement released to reporters who had expected him to announce he would appeal the case to the Supreme Court. “I believe it is in everyone’s best interests that this case be heard swiftly and considered thoroughly so the court can resolve these legal issues with the finality that the voters deserve.” What wasn’t clear was whether Shelley wanted to take a second crack at arguing the case in the 9th Circuit — where Deputy Attorney General Douglas Woods fared badly in a Pasadena, Calif., hearing last week — or appeal to the Supreme Court. California Attorney General Bill Lockyer didn’t shed any more light on the state’s strategy. “All I can tell you is that we’ve written petitions that would begin the process in both courts,” Lockyer said. It is up to Shelley to decide which to file, he added. “There’s been an active discussion of every option,” Lockyer said. But one source familiar with the Supreme Court said that in light of the 9th Circuit’s order, clerks there don’t expect any petitions for certiorari in the near future. O’Melveny & Myers partner Charles Diamond, who represents intervenor Ted Costa, said Monday he would take the case to Washington, D.C., but changed his tune following Tuesday’s order. “It certainly indicated that there are some hospitable faces on the court that are reaching out to us,” Diamond said. Most observers believe the court was signaling with its order that it will rehear the case, and court sources say the judges are already debating the case among themselves. Normally, calls to hear a case en banc can take several weeks. But sources said the case is being treated as an expedited appeal, much like a death penalty case. Another source said death penalty-like procedures are also in place at the Supreme Court, so the justices can deal with the case quickly if need be. The court sources say a schedule for voting on the case has been set, with one adding that a hearing could be set as early as next week. A majority of the court’s active judges must vote to hear the case en banc. But two judges, Stephen Reinhardt and Kim Wardlaw, have recused themselves. Reinhardt, a Jimmy Carter appointee, is married to the ACLU’s Southern California executive director. Wardlaw, a Bill Clinton appointee, is recusing herself from all cases involving her former firm, O’Melveny & Myers. Under court en banc procedures, a panel of 11 judges would be randomly selected to review the case. The panel always includes Chief Judge Mary Schroeder. It would not necessarily include the judges on the original panel, Sidney Thomas, Harry Pregerson and Richard Paez. Many of the circuit judges are in San Francisco for en banc hearings this week, including judges from the court’s most far-flung locales — Hawaii and Alaska — which could make debating the case easier. A regularly scheduled court meeting is also set for this afternoon, at about the same time briefing on whether to rehear the case is due. APPEAL TIMING Citing Bush v. Gore extensively, Monday’s panel postponed the recall vote due to concerns that voters in six counties still using antiquated punch-card machines would be disenfranchised. By the regularly scheduled March election, those machines are to be replaced. But the ACLU argued that the earlier election would mean unequal treatment of voters in those six counties, which have large minority populations. “These issues are better decided prophylactically than by bitter, post-election litigation over the legitimacy of the election, particularly where the margin of voting machine error may well exceed the margin of victory,” the court wrote. With less than three weeks until the scheduled vote, an accelerated en banc process would still give the Supreme Court time to hear any appeal. In anticipation of a Supreme Court showdown, the ACLU added Supreme Court specialist Thomas Goldstein of Washington, D.C.’s Goldstein & Howe, to its legal team. Mark Rosenbaum, the lead lawyer for the ACLU, downplayed the significance of the 9th Circuit’s order. “I wouldn’t know how to draw any conclusions from it. I honestly don’t.” State officials had trouble interpreting it, too. Shelley’s canceled press conference left a throng of reporters, as well as five television satellite trucks, in the lurch. Dissatisfied reporters then milled around Shelley’s sixth-floor office until spokeswoman Terri Carbaugh appeared. Asked for Shelley’s plans if he loses en banc, Carbaugh would only say that “plan B” was still under review. While Shelley and others try to decide how and where to appeal, others involved have to figure out how to pay for it. Rescue California … Recall Gray Davis, the committee that was bankrolled by former governor candidate U.S. Rep. Darrell Issa, is paying the legal bills of intervenor Costa. Both the committee and Costa are represented by Bell, McAndrews, Hiltachk & Davidian, a Sacramento firm that also represents the California Republican Party. The committee, which has already paid $69,649 to Bell McAndrews this year, is having trouble raising money to fight the ACLU’s suit, according to Rescue California spokesman Dave Gilliard. Although the committee has received some money from Bill Simon, Issa and Arnold Schwarzenegger, Gilliard would like to see more money from recall candidates because they have a “vested interest” in the outcome of the case.

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