Sorting a Batch of Legal Lemons : Emphasis on the future is the only bright side of Bernhardt recall-vote fiasco

The decision by the San Diego City Council to allow residents in the new 5th District to vote on Councilwoman Linda Bernhardt’s recall and choose her possible successor--rather than voters in the old 5th District, who started the recall movement--is inherently unfair.

But holding the elections in the old district would also have been unfair. It would have denied voters in the new district the right to select their representative for the next 2 1/2 years.

Legally there is no clear course. The question hasn’t come up before in California, and seldom elsewhere has a recall been concurrent with a redistricting.

So each side put together pieces of law to support its argument.

Splitting the baby, by letting the old Fifth decide on recall and the new choose a successor, might have been the fairest way. But the Municipal Code says that, to vote on the successor, one must have voted in the recall.

This left the decision to the wisdom of politics.

But that process also was unfair because Linda Bernhardt participated in the City Council vote.

She was not only permitted to vote, but required to, under interpretation of city law, unless she was found to have a financial conflict of interest.

The rule was, no doubt, meant to prevent council members from ducking tough votes. But, in this case, it made a mockery of the process. In effect, Bernhardt cast the tiebreaker in the 5-4 vote to hold the election in her new district, where political observers think she has a better chance of survival.

Common sense, if not the law, says that is a conflict of interest.

Out of this unfair process, however, may have emerged the best possible outcome.

The council’s decision essentially gives the right to representation precedence over the right to recall. The decision emphasizes the future rather than the past.

Right now, Bernhardt represents the new district. Those voters will get to choose whether they want her or someone else. The voters who were in the old 5th District are rid of Bernhardt, and they will get to vote on whether to keep their new council member, Bruce Henderson, later this year.

It’s probably the best pitcher of lemonade we can expect from this batch of legal lemons.

What’s sacrificed? The recall supporters’ right to redress. That is unfortunate. But it is difficult to view the council’s decision as a serious disenfranchisement.

Compare it, for example, to the disenfranchisement that the old district boundaries imposed on Latinos. Or the disenfranchisement under the city’s former, at-large election method in which a candidate who lost in a district primary could still win in the citywide runoff.

This recall/redistricting dilemma is an anomaly. Its chances of recurring are infinitesimal.

So let’s drink our lemonade and get on with it.