Courtroom Challenges Stand in Recall Path

The signatures have been gathered, the election set. But the drive to recall Gov. Gray Davis faces a last hurdle that could stop the proceedings cold: half a dozen legal challenges now wending through the courts.

The cases, filed by Davis and private individuals, raise three broad legal arguments under review by the California Supreme Court and U.S. District Court: that a quick election would disenfranchise some voters, particularly Davis supporters; that the method for choosing a successor to Davis is flawed; and that the rules for candidate qualifications are too loose.

The state Supreme Court, where most of the litigation has been filed, quickly asked both sides to file briefs, leading legal experts to expect a fast decision on which challenges, if any, the justices will take up. The seven justices, six of whom were appointed by Republican governors, could schedule arguments in some or all of the cases or could simply dismiss them.

“We could well hear something by Friday,” said Rick Hasen, a Loyola Law School professor who keeps tabs on the recall lawsuits on a Web site, www.electionlaw.blogspot.com. Others believe that the justices could give some indications as early as today. If the court were to schedule a hearing, Hasen said, the justices would probably also delay the deadline for candidates to get on the ballot..

However, Fred Woocher, a Santa Monica attorney who specializes in election law, said the justices could probably wait until the deadline for printing ballot materials -- roughly the beginning of September.

“I think there is an urgency to have the cases decided by the end of the month,” Woocher said.

The first question before the courts is when an election should be held.

Davis contends that an Oct. 7 special election would disenfranchise some voters, especially his supporters in places like Los Angeles County, and poor and minority voters in general.

That, his petition says, would run afoul of equal protection guarantees.

Hasen said he considers Davis’ argument the strongest of the many challenges now pending, although other legal experts disagree.

Davis’ petition makes two arguments. One is that the old punch-card voting machines that were at the center of the Florida miscount in 2000 would still be used in Los Angeles and seven other counties.

During the Florida recounts, a percentage of votes were thrown out because of the failure of such machines. The second argument is that the plan by officials in several urban counties to consolidate precincts would disproportionately hurt minority voters. County registrars say that, to hold a statewide election on short notice, they have no choice but to merge some precincts. They add, however, that they routinely do this for city elections.

Both problems would be fixed by delaying the recall until the statewide election in March, Davis’ attorneys said. By then, punch-card voting machines will have been scrapped in favor of more accurate machines throughout the state and no precincts would have to be consolidated.

The legal basis for Davis’ claim is the U.S. Supreme Court decision that sealed Republican George W. Bush’s victory in the presidential election of 2000. The high court ruled against a possible recount of Florida votes, in part on the grounds that the equal protection guarantee in the Constitution prohibited different procedures in different counties. Opponents, whose briefs in the case are due today, are expected to argue that Davis’ arguments are too speculative to justify postponing the election.

The only case filed so far in federal court contends that the election schedule violates part of the federal Voting Rights Act. A group of San Francisco lawyers Tuesday filed suit in San Jose pointing to a provision that requires four California counties to clear any change in voting procedures with federal authorities. That procedure generally takes weeks.

The National Assn. for the Advancement of Colored People also has indicated it may file a lawsuit based on the Voting Rights Act.

A second set of issues involves the procedure for choosing a new governor if Davis loses the up-or-down vote.

Two cases ask the court to allow only the up-or-down vote and to block the election of a successor.

The petitions make essentially the same argument -- that the state Constitution says that, if the governor’s office becomes vacant, the lieutenant governor, in this case Cruz Bustamante, fills the vacancy.

The petitions note that an amendment in 1974 changed the part of the Constitution that deals with recalls. The amendment, among other changes, added language to say that an election for successors should be put on a recall ballot “if appropriate.”

Because the lieutenant governor is there to replace the governor, an election to pick a successor would not be appropriate, the petitions argue.

One of the two cases was filed by former state Sen. Barry Keene, a Democrat. Keene carried legislation that led to the voter-approved constitutional amendment.

In an interview, Keene said he wrote the provision adding the two words to the Constitution and did so specifically with the recall of a governor in mind. Because there was no legislative debate on that provision, there is no record that corroborates his recollection, he said.

In a brief filed Monday opposing the petition, Atty. Gen. Bill Lockyer said the argument is wrong because a recall would not create a vacancy. Davis would still be governor until the moment his replacement was sworn in, Lockyer argues.

Davis, in his suit, makes a different argument against picking a new governor through the recall.

Because of the way the election is structured, Davis’ lawyers argue, the votes of his supporters would not have the same value as those who vote against him. Davis could win more than 49% of the votes in the up-or-down ballot and still be recalled. Then, because there are likely to be many candidates on the replacement ballot, the winner could be chosen by only a small fraction of the votes.

Davis argues that problem could be solved by allowing him to be a candidate in the election for a successor. Opponents argue that would unfairly give Davis two chances to win.

A final set of issues involves the rules established by Secretary of State Kevin Shelley for candidates to get on the ballot. The rules require major party candidates to pay $3,500 and submit 65 to 100 signatures to qualify or collect more signatures a pay a smaller fee.

The low threshold has been blamed for a plethora of candidates, although it is unclear how many of the hundreds who have expressed interest will actually run.

Mark Burton, who filed the case challenging Shelley’s rules, argued that Shelley had drawn them from a section of the election code that does not apply to recalls. Lockyer, in his brief urging the court to uphold Shelley’s decision, said other parts of the election law back up Shelley.

Other methods used in statewide elections would be more burdensome, according to Lockyer.

The procedure used for independent candidates in statewide elections would have called for candidates to collect signatures of 1% of registered voters, or about 150,000 -- an impossible burden, Lockyer said.

Hasen, the Loyola Law School professor, said he doubts that all of the challenges will fail.

“I think that the election will eventually take place, perhaps with different rules for collecting signatures, at a date later than Oct. 7 but earlier than March,” Hasen wrote on his Web site.