California Assembly’s vote on Maldonado: neither yes nor no

The state Assembly refused Thursday to confirm Gov. Arnold Schwarzenegger’s choice to fill the empty lieutenant governor seat, but the administration is vowing to install moderate state Sen. Abel Maldonado (R-Santa Maria) nonetheless, saying the vote is moot.

The 80-member house voted 37 to 35 in favor of Maldonado’s appointment -- failing to achieve a 41-vote majority for or against him. The Schwarzenegger administration said the tally means that Maldonado gets the job because the state Constitution says the nominee takes office if he is “neither confirmed nor refused confirmation.”

Assembly leaders say their lawyers believe otherwise: that the failure to get 41 yes votes means Maldonado was rejected.

The dispute creates a new flash point -- and adds the threat of litigation -- in the partisan battle over who should fill the largely ceremonial post. All of the “no” votes came from Democrats, although eight Democrats crossed party lines to vote for Maldonado.

The governor, who had promised to use the nomination to promote bipartisan harmony, came out swinging after the roll call. He plans to swear in Maldonado in about two weeks, administration officials said.

“Based on the votes taken today, Sen. Abel Maldonado will be sworn in as the next lieutenant governor,” Schwarzenegger said in a statement.

Democrats scoffed. “This isn’t a Third World country,” said Assemblyman Charles Calderon (D-Montebello), where someone “can stand up and say, ‘I’m governor, I’m gonna do this, I’m gonna do that.’ ”

The Assembly’s Democrats, Calderon vowed, would refuse to recognize Maldonado as lieutenant governor, “not permit him to attend any meetings and not allow him to perform duties of the office.”

Maldonado spoke briefly at a news conference, saying, “I feel honored and I feel great with the vote that I received,” before an administration lawyer took over to discuss the legal fine points.

The fight may now make its way to a courtroom, although voters might choose the next lieutenant governor before a ruling is issued. Slightly more than 10 months remain in the current term for the post, which was left vacant when Democrat John Garamendi was elected to Congress late last year.

If the Assembly does not have a majority to approve Maldonado, is that the same as refusing confirmation? The legal issue is murky, said experts, who disagreed on which side would prevail.

Barry McDonald, a professor of constitutional law at Pepperdine University, said the section of the state Constitution at issue is “inelegantly drafted” and unclear, but the Assembly would appear to have the upper hand in court.

But Brian Landsberg, a professor at Pacific McGeorge Law School in Sacramento, said the governor’s interpretation is reasonable.

“The failure to say no is not a rejection,” Landsberg said. “I think no means no, and yes means yes, and if we don’t have a yes or a no, then it would be reasonable to say they haven’t taken a position.”

If the Assembly has not taken a position, Maldonado would be considered confirmed.

Maldonado was caught in the partisanship that his nomination was intended to transcend.

Democrats didn’t want him to have the incumbent’s advantage in this year’s elections. The senator had said he would run for the office regardless of whether he was confirmed.

Some GOP colleagues threatened to abandon him after he crossed the aisle to cast the deciding vote in favor of last year’s budget, which raised taxes.

Both Democrats and Republicans resented him for leveraging his budget vote for the Legislature’s support of a ballot measure that could upend the political establishment by opening up primaries to voters of all parties. Voters will decide on that proposal in June.

The Assembly’s vote comes as the Legislature’s approval ratings have been hovering at record lows, largely because of public frustration with Sacramento’s partisan bickering.

“It should come as no surprise that this body has such a negative approval rating,” said Nathan Fletcher (R-San Diego).

jack.dolan@latimes.com

michael.rothfeld@latimes.com