State Justices May Not Have Final Word

California Supreme Court, meeting in a closed session, rejected all challenges to the recall election, but legal experts warned that litigation over the October vote is likely to continue.

Although the state high court has the final word on matters of state law, federal courts still could intervene and postpone the recall attempt, said Loyola Law School professor Richard L. Hasen.

“I think it is premature to expect the litigation is over,” he said.

In fact, several cases challenging the recall already have been filed in federal court, including one filed Thursday by the American Civil Liberties Union and several civil rights organizations challenging the use of punch-card voting machines in six large urban counties, including Los Angeles.

The machines, the same kind used in Florida in the presidential election of 2000, are unreliable, the lawsuit charges.

The process for buying “lottery tickets should not be more reliable than voting for the governor of California,” said Mark D. Rosenbaum of the ACLU.

The state Supreme Court’s actions unanimously rejected four petitions, including one filed by Gov. Gray Davis.

In the fifth case, which challenged the election on grounds that the requirement to get on the ballot were too loose, the justices split 5 to 2.

The Davis campaign said its attorneys were reviewing whether to appeal their case to the U.S. Supreme Court.

Lawyers who brought the other cases, by contrast, said they would not pursue the appeals, though some said more lawsuits could come after the voting.

The issue that attracted the most support among the justices revolved around Secretary of State Kevin Shelley’s ruling that anyone can run to succeed Davis by submitting 65 signatures and a $3,500 fee.

State law does not specify the number of signatures required to nominate a candidate on a recall replacement ballot, and Shelley was within his rights to follow standards used in two recall elections for offices other than governor, the majority said in an order dismissing the challenge. The order was signed by Justices Marvin R. Baxter, Kathryn Mickle Werdegar, Ming W. Chin and Janice Rogers Brown.

The court “should not postpone the election just because there may be too many candidates on the ballot, giving the people too many choices,” said Justice Joyce L. Kennard, who also joined the majority.

Chief Justice Ronald M. George and Justice Carlos Moreno, the only Democrat on the court, disagreed, saying the court should have considered the case.

“The chaos, confusion and circus-like atmosphere that have characterized the current recall process undoubtedly have been brought about in large measure by the extremely low threshold” for getting on the ballot, George said in his dissent.

The current filing rules are not clearly based on state law and, “should the vote to recall the governor be successful, we may never know who would have been the legitimate winner” if the proper filing rules had been followed, George wrote.

The prospect that the election now could be challenged after the fact is unfortunate, said Mark Burton, the lawyer who brought the case.

“We tried to avoid this mess beforehand,” he said.