Florida all over again?

And by slavishly following the Bush vs. Gore decision, the Ninth Circuit judges may have forced the Supreme Court justices into an awkward dance of explaining why Bush vs. Gore doesn't really mean what it says. "The Ninth Circuit is sometimes most controversial not when it flaunts Supreme Court authority but when it takes the Supreme Court's words and starts running with them in ways that five justices don't want them to go," said Hasting law professor Vikram Amar.

The Ninth Circuit judges seemed to do a bit of that Monday. They quoted frequently and at length from Bush vs. Gore, and they threw in other taunts at the Republicans as well. In a nod to other Florida 2000 controversies, they noted that the rushed nature of the California recall will make it difficult for voters serving in the military to have their ballots back in California in time to be counted. And in what appeared to be a fairly gratuitous reference to the war in Iraq, the judges noted the importance of modeling good democratic behavior for citizens of foreign lands at this "critical time" in history.

It all seemed like an intentional effort to pick a fight with the Supreme Court's conservatives. And on some level, at least, legal experts predicted that the Supreme Court will take the bait. Richard Epstein, a professor of law at the University of Chicago and a fellow at Stanford's Hoover Institution, said he thinks it is likely that Supreme Court will reverse the Ninth Circuit decision almost immediately. While he is no fan of Bush vs. Gore, he said the Ninth Circuit's decision is even worse. "This is a case of judges taking a bad decision and extending it in a grotesque fashion," Epstein said.

While Epstein believes that the Equal Protection rationale behind Bush vs. Gore was dubious at best, the right way to apply that rationale, he said, is after the fact (as the Supreme Court did in Florida) and then, only if it matters. In the Ninth Circuit's decision Monday, the court accepted the argument that approximately 40,000 voters would have their votes thrown out if punch-card ballots are used. Epstein's solution: Hold the election, and if the result turns on 40,000 votes or fewer, wade into the Bush vs. Gore morass then.

Tushnet predicted that the Supreme Court will take just such an approach, but in a slightly more oblique way. Rather than reversing the Ninth Circuit, the Supreme Court could simply stay the effect of the Ninth Circuit's order until after the recall election. "They could say, 'We can figure out ways to sequester the challenged ballots, and let's see if it makes a difference.'"

Whatever the Supreme Court does, though, the Ninth Circuit's decision brings the specter of Florida to California. Democrats are already eager to nationalize the California debate. Bill Clinton campaigned with Gray Davis in Los Angeles Sunday, and other major national Democrats -- including, possibly, Al Gore -- are expected to appear in the state in the coming weeks. If the Supreme Court is seen as intervening in California, the "recall as right-wing power grab" argument becomes a much easier sell for Davis.

In the meantime, however, both Davis and the candidates to replace him seem committed to campaigning as if the Ninth Circuit decision never happened. With an eye toward the judicial politics of it all -- and aware that the Ninth Circuit is indeed the most-reversed of all of the federal appellate courts -- Davis and his challengers continued to campaign Monday with the assumption that there will be an election on Oct. 7.

The most recent polls show the recall race drawing ever closer: A Los Angeles Times poll shows voters favoring the recall just 50-45, a significant slide from earlier numbers. Bolstered by the poll, Davis made buoyant campaign stops in Southern California Sunday and Monday. Schwarzenegger, who was unable to shake McClintock's conservative challenge at the Republican state convention in Los Angeles over the weekend, appeared Monday on Oprah Winfrey's show with his wife, Kennedy cousin Maria Shriver, who had to put her hand over the candidate's mouth to stop him from dipping into the lewd and crude language that has drawn criticism from women's groups and conservatives alike.

Meanwhile, independent candidate Arianna Huffington expressed hope that a delay in the voting could give her -- and other lesser-known candidates -- time to make inroads on the lead held by Bustamante and Schwarzenegger. In a statement issued Monday afternoon, Huffington said the Ninth Circuit's decision, if upheld, "will give voters more time to get to scrutinize all the recall candidates -- which is good news for democracy but bad news for those candidates hoping to win based on name recognition and celebrity or the fact that they happen to be the next guy in line."

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