Democrats may have lost the battle over whether Gov. Gray Davis must stand before voters in a historic recall election, but they were zeroing in Wednesday on a politically charged legal strategy that could preclude voters from picking his successor if Davis gets tossed from office.

If Democrats go forward with the plan floated a day earlier by Democratic Lt. Gov. Cruz Bustamante, a little-known state commission would petition the California Supreme Court to decide whether a Davis recall means Bustamante automatically becomes governor or others can run for the job.

Bustamante, who said in an interview Wednesday that he didn't want to contribute to the "circus atmosphere that's taking place" around the recall, may have done just that with his surprise announcement a day earlier that when he signs a proclamation setting a date for the recall, he's not going to include an election to choose a possible successor to Davis.

"Anything other than setting a date -- that's not in my realm, I don't believe," Bustamante said. "My reading of this is a very simple matter. What I'm trying to do is demonstrate clarity and decisiveness."

After a frantic day of legal and political maneuvering up and down the state, Senate President Pro Tem John Burton, D-San Francisco, scheduled a press conference for 11:45 a.m. today, when he is expected to disclose whether Bustamante's scenario can proceed.

Republicans have already threatened to sue and said Bustamante, who has come out against the recall and has said he won't be a candidate, is trying to appoint himself governor without facing voters.

"It's emerging as a big deal," Burton said late Wednesday of Bustamante's plan. "Whether or not it's a big deal or not, I don't know. I haven't got my legal answers from my lawyers yet."

Burton was seeking legal guidance on whether Bustamante was correct when he said it's up to the state's Commission on the Governorship to petition the California Supreme Court to sort out two apparently conflicting sections of the state constitution.

Burton, by virtue of his legislative leadership role, is the commission's chairman.

"It puts me in the eye of the storm," Burton said of the commission's possible role. "The first time I knew about it was when someone asked me."

The five-member commission is so little used that at least one member -- California State University Chancellor Charles Reed -- didn't know it existed or that he was on it until he read newspaper reports Wednesday morning.

As far as anyone around the increasingly frenetic Capitol could recall, the commission hasn't been asked to do anything since 1979, when Gov. Jerry Brown and Lt. Gov. Mike Curb were feuding over a judicial appointment Curb made while Brown was not in California.

"This is all such new territory that you're going to have to pursue any alternative to clarify the law," said Art Torres, a lawyer and former state senator who is now chairman of the state Democratic Party.

"You may have screaming on both sides of the aisle about whether this is good or not, but I really do think these legal issues need to be litigated and they can be done so without jeopardizing the timeliness of the recall election."

There were vastly different opinions from election lawyers about Bustamante's idea Wednesday, and even Secretary of State Kevin Shelley said he and his lawyers read the law differently.

It's his intention, said Shelley, who is also a Democrat, to put together a ballot that has replacement candidates on it.

"The bottom line is, as the chief elections officer, it's my responsibility to either accept or to not accept candidacy papers," Shelley said in an interview before he certified the recall election.

"It is currently our intention to accept those papers. We believe that replacement candidates can appear on this ballot."

Shelley called Bustamante's interpretation of the law "an incorrect interpretation."

Republicans who may run to replace Davis immediately cried foul over the idea of Bustamante automatically succeeding the governor if he's recalled. Dave Gilliard, leader of the main signature-gathering effort, said he is prepared to sue to block it.

"We believe this is an 11th-hour attempt to hijack the recall process," Gilliard said, "and have Cruz Bustamante appoint himself governor without having to go through an election himself."

Sen. Tom McClintock, R-Simi Valley, who Wednesday filed papers creating an "exploratory" campaign committee that allows him to start raising money, called Bustamante's idea "a politically indefensible position for him to try to unilaterally deny the people their right to chose a successor to the governor."

Specifically at issue are two apparently conflicting sections of the state constitution. Article 5, Section 10 says: "The lieutenant governor shall become governor when a vacancy occurs in the office of the governor."

But Article 2 of the constitution, the section dealing with recalls, says "an election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called. ... "

"Those two little words, if appropriate, really put everything into a tailspin," said Torres, the state's Democratic chairman.

But Thomas Hiltachk, lawyer for Gilliard's recall group, Rescue California, said Bustamante is behaving irresponsibly.

"He's ignoring the requirement that he call a successor election," Hiltachk said. "The 'if appropriate' ain't that complicated."

Hiltachk said it could be in the constitution to cover situations where no candidates declare to run as replacements.

Even Fred Woocher, a prominent Democratic elections lawyer from Los Angeles, said he sees no legal justification for Bustamante's action.

Woocher said his research leads him to believe the "if appropriate" covers the recall of state appellate judges, who can be recalled but not elected.

"It's a bold move on his part," Woocher said of Bustamante. "From my initial take on it, I did not see this as an issue."

There was more legal action on the recall Wednesday.

In Los Angeles, Davis' allies lost another bid to halt certification of the recall petitions but quickly filed an appeal to the state Supreme Court.

And in San Diego, a law professor at the University of San Diego School of Law went to federal court to block the recall because, he said, some voters will be disenfranchised by the process. Professor Shaun Martin said the portion of election law that allows voters to select a replacement candidate only if they vote yes or no on whether Davis should be recalled violates the federal Constitution.