Legal Counterattack Would Carry Risks

If Gov. Gray Davis decided to mount a court challenge to a recall campaign seeking to remove him from office, the best outcome probably would only delay his day of reckoning with California voters and could end up antagonizing them, legal and political experts said Wednesday.

A legal counterattack on various grounds is being contemplated and debated by the Democratic governor’s strategists. But there are differences of opinion within the Davis camp on the issue, with some Democrats emphasizing the political dangers of pursuing a legal strategy.

The governor’s supporters have compiled affidavits from people asked to sign the recall petitions and videotapes of the signature collection efforts in preparation for a legal challenge, possibly by the end of the week, said one Davis strategist.

“Presumably there will be legal challenges every step of the way from a number of entities,” said Chris Lehane, a Democratic consultant working with anti-recall forces. “There could be countless lawsuits to try to tie up the process.”

The recall’s sponsors, however, said they were confident that their petitions were properly drafted and circulated. They predicted that any challenge would fail and would only serve to embarrass Davis.

“I think it’s safe to assume the persons responsible for circulating petitions were knowledgeable of the elections code requirement for circulating petitions,” said Thomas Hiltachk, a legal advisor to the recall groups. “I’m not shaking in my boots worrying about a legal challenge.”

Beyond questioning the drafting and circulating of the petitions, one possible avenue of attack for anti-recall forces could be a review of the validation of more than 1 million signatures, which county election registrars are conducting under instructions from Secretary of State Kevin Shelley.

“One of the things, if you were desperate, would be to review all the validation of signatures,” said Floyd Feeney, an expert in election law at UC Davis. “You might well have a right. Even if you didn’t succeed in that, and I don’t think they would, you might be able to delay the process. One goal of the exercise could be to delay and kick it over into the March primary.”

A March election is generally seen as more favorable for Davis because it would coincide with a contested Democratic presidential primary in California and thus presumably bolster Democratic turnout. A special recall election in the fall would lack that incentive.

A challenge of the petitions would face a difficult time contending with existing legal precedents, lawyers in the field said. State and federal courts have set the bar extremely high for challenges against expressions of direct democracy such as ballot initiatives and recall campaigns.

In at least two rulings, the U.S. Supreme Court has ruled that petition circulation was “core political speech” that should not be unduly restricted by states.

In a 1988 decision, Meyer vs. Grant, the court struck down Colorado’s prohibition against paid signature drives for ballot initiatives. And in a 1999 decision, Buckley vs. American Constitutional Law Foundation Inc., the court threw out three controls Colorado had placed on its initiative petition process, including requirements that petition circulators be registered voters in the state where the petitions are being circulated -- a requirement that California still has in place but which has never been tested in court.

Any attempt to challenge the legality of the recall petition itself -- which accuses Davis of “gross mismanagement” of state finances -- would bring the governor into conflict with Shelley, a fellow Democrat.

Under state provisions for a recall, Shelley approved the petition’s wording and format, including the precise spacing and margins laid down by the election code. Shelley rejected initial petitions submitted by recall organizer Ted Costa, a Sacramento anti-tax activist. One of the reasons cited was a missing period, Hiltachk said.

A potential problem area, however, could be petitions that were downloaded from the Web sites of the recall groups, said Terri Carbaugh, assistant secretary of state for communications. But Shelley will abide by an April 1980 finding by one of his predecessors setting aside the requirement that signatures must be gathered by a registered voter, Carbaugh said.

“It’s the secretary of state’s position that if a voter has signed a petition, that voter should not be punished for the circulator’s mistake,” she said. “We’ve reviewed [the finding] and concurred.”

Another option for the anti-recall forces could be to target the validation of signatures in certain counties.

“If you’re thinking about ways to throw sand on the railroad tracks, you could go to a county that was having problems and challenge their count,” Feeney said. “I’m not sure what success you would have, but it could take some time.”

But Richard Pildes, professor of law at New York University School of Law, said courts are reluctant to put off elections.

“Courts are pretty sensitive to moving election issues through,” Pildes said. “Usually courts approach these issues with a sense of urgency.”

Some Davis supporters say there is considerable sentiment among Democrats and independents that the governor would be justified in mounting a full counterattack, including the use of the courts. They reject any comparisons to Al Gore’s attempts to force a recount of votes in Florida during the 2000 presidential election.

“There is a public perception that this is an illegitimate effort to undermine the democratic process by some sore losers, and [Davis] is justified in using all weapons at his disposal,” said Lehane, a Gore operative in the Florida fight. “People no longer see this as Davis trying to keep himself in office, and that gives you a much stronger foundation to fight back from, in terms of the public perceptions.”

Ultimately, however, any legal counterattack would run the risk of backfiring, political analysts said.

“If people find the whole process to be illicit and uncalled for and a majority of voters of the state would like to see this thing delayed, then he can delay this thing until the cows come home,” said Bruce Cain, a UC Berkeley political science professor.

On the other hand, “if the Republicans are right, that there is some desire on the part of a majority of Californians to rethink the question of whether to have Gray Davis as governor, then obviously legal strategies are potentially problematic for him,” Cain said. “If the strategies fail, then he could have a truly angry electorate.”

Times researcher Patti Williams contributed to this report.