California high court must consider recall before voters get say

freedomforum.org ^ | 07.26.03 | associated press

[freepatriot32]

The California Supreme Court declined late yesterday to halt the recall vote of Gov. Gray Davis, virtually assuring the Golden State's first voter-driven measure to oust its governor.

SAN FRANCISCO — While Lt. Gov. Cruz Bustamante ordered an Oct. 7 recall election targeting Gov. Gray Davis, it's premature to suggest that Davis' political future rests with voters.

Instead, and at least for now, Davis' fate is in the hands of seven men and women comprising the California Supreme Court, which is reviewing a host of competing yet quirky election laws stemming from a last-ditch challenge by pro-Davis forces to block the recall. A decision, which could block, delay or allow the recall to proceed, is expected any time.

The dispute centers on allegations of election fraud: whether anti-Davis forces illegally gathered the necessary 900,000 signatures of registered voters that prompted the recall.

In trying to decide the controversy, the high court is considering a jumble of election codes, state constitutional provisions and, oddly enough, the First Amendment right of freedom of speech.

At its core, the fight is about an election law the California Legislature amended in 2001. It requires the recall's signature gatherers, who in this case were paid about $1 per signature they collected outside shopping malls, be registered voters and residents of California.

Paul R. Kiesel, the attorney for Taxpayers Against the Governor's Recall, submitted to the state Supreme Court dozens of statements from signature gatherers who say they neither were residents nor registered to vote in California.

Among other things, Kiesel is demanding the justices order elections officials to review whether enough signatures were gathered by eliminating the signatures collected by those who weren't qualified to acquire them. Before that takes place, there must be a time-consuming review of every signature gatherer to determine whether they were eligible, Kiesel said. In all, 1.6 million signatures were collected by thousands of gatherers.

"The point of these laws is that individuals who circulate petitions have a stake in the outcome of the election," Kiesel said. "If you're not a voter, you have no stake in the outcome of the election you're seeking to put on the ballot."

But recall supporters say that, even if the court were to agree with Kiesel, there would be a breach of a state constitutional provision requiring recall elections to take place within 80 days of the state secretary certifying the validity of the signatures, which was done on July 23.

"It's a fundamental principle of election law that even fraud or illegality will not ordinarily void an election unless the fraud or illegality can be shown to have changed the outcome of the election — that is, who won or who lost," said Robert Wallan, the attorney for Ted Costa, a Sacramento recall proponent and anti-tax activist who is helping lead the anti-Davis efforts.

In addition, and even if the allegations of voter fraud are true, the law in question is unconstitutional, recall supporters say. They point to the 1999 U.S. Supreme Court decision Buckley v. American Constitutional Law Foundation nullifying a Colorado law requiring signature gatherers to be registered voters. Writing for the majority, Justice Ruth Bader Ginsburg said such a requirement was a "burden of speech."

But in that case, the justices ruled on a petition concerning signature gatherers to get an initiative on the ballot, not a recall election.

Two years ago, the California Legislature believed there was a distinction and eliminated the requirements for initiative petitions but left them intact when it came to recall elections.

Even still, California law is silent on what to do if the signatures were obtained fraudulently. The California Supreme Court has never addressed the topic following the high court's 1999 Buckley ruling. In 1994, the state high court let stand a Los Angeles ordinance requiring voter registration and residency.

[goldstategop]

The Court would not overturn an election result. The opponents of the recall have the burden of proving signatures were illegally gathered. And by the time they get around to making their case the voters verdict will have rendered it moot.

[Ernest_at_the_Beach]

Davis is toast!

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[Congressman Billybob]

This is a bigoted article. The clearest proof of that is the California Supreme Court declined to issue any preliminary order in this very case. When any court is inclined to take a case, and to jump in if it finds actionable irregularities in a matter with a tight time line, it begins with a preliminary order.

Witness what the Supreme Court did in the Bush/Gore Florida case(s). This reporter was fed this story by the Davis people, and ran with it. However, the story is as phony as Davis himself. Have no fear, friends.

Congressman Billybob

Latest article, now up FR, "Sixteen Little Words."

[Waco]

Wishful bullsh-ting........

[mvpel]

In addition, and even if the allegations of voter fraud are true, the law in question is unconstitutional, recall supporters say. They point to the 1999 U.S. Supreme Court decision Buckley v. American Constitutional Law Foundation nullifying a Colorado law requiring signature gatherers to be registered voters. Writing for the majority, Justice Ruth Bader Ginsburg said such a requirement was a "burden of speech."

But in that case, the justices ruled on a petition concerning signature gatherers to get an initiative on the ballot, not a recall election.

Two years ago, the California Legislature believed there was a distinction and eliminated the requirements for initiative petitions but left them intact when it came to recall elections.

They don't have a leg to stand on in that respect if you look at the tenor of the Buckley decision. For example:

Petition circulation, we held, is “core political speech,” because it involves “interactive communication concerning political change.” Meyer v. Grant, 486 U.S. 414 (1988). First Amendment protection for such interaction, we agreed, is “at its zenith.” Id., at 425

From Meyer:We agree with the Court of Appeals' conclusion that the statute trenches upon an area in which the importance of First Amendment protections is "at its zenith." For that reason the burden that Colorado must overcome to justify this criminal law is well-nigh insurmountable.

...the First Amendment requires us to be vigilant in making those judgments, to guard against undue hindrances to political conversations and the exchange of ideas. See Meyer, 486 U.S., at 421.