Davis Faces Deep Dilemma Over Appeal of Prop. 187

Friends of Gov. Gray Davis are warning him these days about this possible scenario: The ongoing lawsuit over Proposition 187, the explosive 1994 ballot measure to end benefits for illegal immigrants, drags on for years.

It pits Davis, acting on behalf of California voters who passed the initiative, against leading Latino organizations. It goes to an emotionally and politically charged trial watched coast to coast and across the border, and then to the U.S. Supreme Court for a landmark decision.

He wins.

And perhaps just in time for his reelection campaign in 2002, hundreds of thousands of undocumented children are ejected from California schools, indigent elderly immigrants are turned out of government-run care homes and new identification checks are required for everyone.

Or there is a second scenario: He drops the lawsuit now and Proposition 187 is gone forever.

The case is on appeal in federal court after it was declared unconstitutional last year. And Davis will choose in coming weeks whether to stay the course of his Republican predecessor, Pete Wilson.

To continue the case would seem a political nightmare for a Democrat like Davis, who opposed Proposition 187 and who campaigned for election last year on a promise to heal the racial strains caused by its passage.

“Believe me, there is no great upside politically to appealing this thing,” said a source close to the governor. “What if we win on appeal? You think that’s an appetizing scenario for somebody opposed to Proposition 187?”

But the other choice--to drop the appeal--would also violate Davis’ pledge to not interfere with the will of the voters even if he disagrees with it.

“I have two conflicting obligations,” Davis said in an interview last week. “I opposed 187. I personally think it is unconstitutional. I also believe I have certain obligations as the chief executive to support the law.”

The choice is especially difficult for a cautious political centrist, as Davis describes himself.

Wilson strongly backed Proposition 187, and his decision to enforce it through the courts was a simple one. Many liberal politicians in California would sleep well at night if they had an opportunity to drop the case and kill Proposition 187 for good.

Davis, however, is not an ideologue. He is a self-described pragmatist who is torn when logic is offered from both sides of an argument. And his unabashed caution can eclipse his political impulses. As lieutenant governor, for example, Davis rarely challenged Wilson.

Davis’ legal advisors are considering whether the governor is constitutionally required to defend a ballot measure passed by the voters. On Tuesday, Davis suggested in radio interviews that he may not have a choice in the matter because of his legal obligations.

“I did take the oath of office pledging fidelity to our Constitution and the federal Constitution, and it may well be I’m duty bound by that oath to be sure that appeal goes forward,” he told KCRW’s Warren Olney on the program “Which Way L.A.?”

Constitutional scholars, however, say that the law on this subject is laden with technicalities but no clear obligations.

If Davis dropped drop the suit and his decision was challenged, he would almost certainly prevail, said Stephen Barnett, a state Constitution expert at UC Berkeley’s Boalt Hall School of Law.

At the same time, Barnett suggested that Davis should continue the suit.

Legislators can use a state attorney to defend laws that they pass, he said. But voters are left to rely on the discretion of the governor for legal representation of laws they pass.

“I would not say he is legally obligated,” Barnett said. “But I would say [the Constitution] supports the position that he ought to get an appellate decision.”

Opponents of Proposition 187--many from groups that strongly backed Davis’ election--have anxiously waited for signs about which way he is leaning. In strong language last week, they warned the governor about seeking refuge in an ambiguous state Constitution.

“There is nothing--I emphasize, absolutely nothing--that requires the governor to continue the appeal,” said Thomas Saenz, an attorney for the Mexican American Legal Defense and Educational Fund, one of the groups involved in the lawsuit.

“That is the most cynical manipulation of legal doctrine since Pete Wilson filed this lawsuit,” he added. “We will expose that lie. . . . It is looking for the easy excuse for failure to do the right thing.”

Peter A. Schey, attorney at the Center for Human Rights, another plaintiff in the case against Proposition 187, said the governor should also consider that years of litigation might produce little or no change in state policy.

Since the measure was passed in 1994, the welfare reform bill signed by President Clinton in 1996 contained language that blocks illegal immigrants from obtaining most of the health and welfare benefits that were targeted by Proposition 187.

The only other major provision in Proposition 187--public school for illegal immigrant children--was already decided by the U.S. Supreme Court. In 1982, the court denied an attempt by Texas to limit education to U.S. citizens.

Proposition 187 was written to challenge that Supreme Court precedent. The authors assumed that the makeup of the court has changed and the impact on California schools is much different today than it was in Texas nearly 20 years ago.

And parts of Proposition 187 are being challenged in state court. Nearly four years ago, a Superior Court judge put the case on hold until the federal court reaches its ultimate decision.

If the measure is upheld on the federal level, the challenge will be revived in the state court--and Davis will again face the question of whether to defend the measure. If the measure is unconstitutional on federal grounds, the state case will be moot, officials said.

Davis has promised to announce his decision in the next three weeks. In the meantime, some close Democratic allies are warning him of the political hazards for himself and the party if he continues the appeal.

For decades, California voters have been sharply divided between their Republican and Democratic candidates.

Democrats believe they may have gained a generational advantage when the GOP strongly backed Proposition 187 and voter participation spiked sharply in the state’s rapidly growing Latino community.

Davis sought to exploit that opportunity in his campaign last year.

He referred to his Republican rival, Atty. Gen. Dan Lungren, as Wilson’s lawyer. He led audiences in chants of “Adios, Pete Wilson!” And at nearly every campaign stop, he promised to end the “era of wedge-issue politics.”

“I will work to unite our people, not divide them,” Davis said on the night he won the Democratic primary last June. “I’ll put an end to the divisive wedge issues that have marked and marred our recent past.”

But Democrats worry that their recent political advantages could be undone if their party’s leader becomes, in effect, the chief enforcer of such a touchstone issue.

“Gray Davis’ election in my mind closed the door on that chapter,” said Assembly Speaker Antonio Villaraigosa (D-Los Angeles). “This opens a Pandora’s box; it opens the door again to the era of the culture wars.”

Other Democrats say it’s not so simple.

There is a third scenario. In it, Davis drops the lawsuit but angry supporters of Proposition 187 draft another initiative and put it on the ballot. Like before, a California election--perhaps during next year’s presidential race or the gubernatorial contest in 2002--is dominated by a debate over illegal immigration.

“If what you want to do is close the book on this thing, what’s the best strategy?” asked a source close to the governor. “Dropping the appeal may in fact keep the issue alive.

“If this were easy,” the source said, “he would have decided it already.”