Want to Vote? Answer This . . . Is The Recall Gov. Gray Davis of California Constitutional?

NY Times ^ | 07/28/03 | SHAUN P. MARTIN and FRANK PARTNOY

[bedolido]

The effort to recall Gov. Gray Davis of California is like a runaway train, fueled by voter anger and political aspirations. But as we race toward the Oct. 7 election date, the public and the courts should take time to consider the major flaws of the process. If the recall vote goes ahead as planned, it will plow over the United States Constitution and the fundamental rights of voters.

The problem stems from this rather circuitous phrase in California election law: "no vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." That is, the recall ballot must pose two questions: First, do you want to recall Governor Davis? Second, assuming a majority of voters support the recall, whom do you want elected in his place?

By law, only voters who answer the first question can have their vote for a candidate in the recall election counted. Those who would prefer not to vote on the merits of the recall face a dilemma: they must either vote on the first question against their will, or forgo their chance to vote for a candidate.

Abstention from voting is a common and respected practice, especially on controversial issues where abstaining can connote a special meaning or protest. If you find yourself in the polling booth and realize you don't know or care enough about, say, a referendum question or a judicial race to vote on it, you're allowed to skip it without giving up your chance to pick a candidate for mayor or president. Members of Congress and legislators around the country are given the option to abstain on bills, and they often do so to make a political point.

The Constitution allows states to precondition voting on certain objective factors like citizenship, residency, age and a clean criminal record. But it does not allow states to force qualified voters to act against their will or to bar them from voting. Nor can states require that voters answer a question about a controversial and politically charged topic in order to be granted the right to vote on a candidate. Absent some compelling interest, the state cannot force voters to either speak up or lose their voice.

And California's interest in this particular recall procedure is far from compelling. Indeed, when asked by a federal judge to explain why things had to be done this way, lawyers from the state attorney general's office were unable to articulate any interest, legitimate or not. Some supporters of the recall have claimed that combining the two votes will save money. But even in the current budget crunch, is saving a few million dollars worth depriving people of their right to vote?

Opponents and proponents of the recall, ignoring these details, are gathering speed instead of perspective. We're already hearing about potential candidates ranging from Representative Darrell Issa, who bankrolled the recall signature-gathering effort, to Arnold Schwarzenegger and the pundit Arianna Huffington. Fortunately, a few judges seem willing to look past the political circus: we have filed a lawsuit in federal court asking a judge to enjoin these recall procedures; a decision could come as soon as tomorrow.

Voter recalls might be a good idea in theory, but this one will not work in practice. With just 11 weeks before the election date, officials are scrambling to retool the recall process. Ultimately, the state legislature should change California's election law to ensure that in the future, voters get to decide whether a recall is merited before they have to start thinking about a successor. Meanwhile, it is up to the federal judiciary to ensure that every vote counts.

Shaun P. martin and Frank Portnoy are professors of law at the University of San Diego.

[goldstategop]

Funny how liberals are concerned the recall election is depriving people of their right to make an informed choice at the voting booth. This is the funniest article I've read all year. It should really be filler space in The Onion. Its out of place in The New York Times.

[dirtboy]

It should really be filler space in The Onion. Its out of place in The New York Times.

Not any more, it isn't.

[Mr. Bird]

They lost me. While I was unaware of the two question ballot process, I fail to see how it infringes on any constitutional protections. How are my voting rights infringed with this? If I support the recall, I say so and vote for someone else (or even Davis if I want to for some sick reason). If I don't support the recall, I not only get to cast my dissent, but that dissent actually means something. If there are enough like-minded voters, Davis remains. If I don't support the recall, but it wins the day, I have still been given the opportunity to choose the winner (again, I could still vote for Davis).

Does someone see a problem with this? I honestly don't see it.

[Alberta's Child]

I'm surprised California law even goes this far by using the votes of all those who voted on Question #1 to determine the winner in Question #2.

If it were up to me, I would only count the votes of those who answered "Yes" to Question #1.

[dirtboy]

Those who would prefer not to vote on the merits of the recall face a dilemma: they must either vote on the first question against their will, or forgo their chance to vote for a candidate.

Gee, let's do some math here. Let's say you are opposed to the recall. If you don't vote on the recall, your opponents don't need to counter your vote. If you do vote to retain Davis (the same outcome as if there was no recall vote at all), then your opposition has to make up one vote to counter yours. So NOT voting in protest actually is a much weaker action here. And this argument is as dumb as they come.

If you find yourself in the polling booth and realize you don't know or care enough about, say, a referendum question or a judicial race to vote on it

Gee, this is a really tough, technical question. Whether or not to give Gray Davis the boot. What a pantload.

[Chad Fairbanks]

The NYT is full of crap - it deprives NO ONE of their right to vote - if you vopte NO on the Recall, then there is no NEED to select a candidate - I mean, hello?????? Am I the only one who sees the obviousness of this?

[Mr. Bird]

Not only that, but why would someone without an opinion feel compelled to go to the booth anyway? Their argument escapes me.

[goldstategop]

Liberals like to muddy up what's straightforward. And they pride themselves on being "nuanced." Hooh Boy!

[Arkie2]

This is actually a question of California constitutional law. The New York Times concern for the sanctity of the US constitution is touching. After all, they've defended the constitution faithfully.

If a no vote means Davis gets to stay in office then that vote counts. Wonder if some Calif. constitutional scholar can clear this up?

[Redwood71]

"The problem stems from this rather circuitous phrase in California election law: "no vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." That is, the recall ballot must pose two questions: First, do you want to recall Governor Davis? Second, assuming a majority of voters support the recall, whom do you want elected in his place?
By law, only voters who answer the first question can have their vote for a candidate in the recall election counted. Those who would prefer not to vote on the merits of the recall face a dilemma: they must either vote on the first question against their will, or forgo their chance to vote for a candidate.

_____________________________________________________
Don't you just love it when liberal law professors start to "interpret" constitutional law?
I see it differently. It states if you did not vote for or against the recall of a candidate, which didn't happen as there was no election to determine a recall election, then you can't vote. Anyone can play with words. The difference is the State of California is giving these maroons tax dollars to do it. And since we are covering the illegals, why not have them interpret the law? Lord knows they couldn't do any worse. We need to translate what they say the same as the other.

[RWR8189]

I fail to see any role for federal interjection in this, it seems to me the whole affair is entirely an issue for the state of California.

[goldstategop]

I do. How come two U.C San Diego Law School professors can't see it like you and I do?

[Mr. Bird]

But I understand it as being much more accommodating: even if you vote against the recall, you may still cast a ballot so as to be counted if the recall option wins the day. It is extremely inclusive and deprives no one of their rights. Actually, it may deprive someone who wishes to vote for a recall candidate but wishes to abstain from voting on a recall at all. That person should lose the voting privelige because they are clearly mentally unstable.

[goldstategop]

Its a state election. There is no federal issue involved here.

[goldstategop]

People can vote to keep Davis. I don't see a problem the two legal bigshots see. Where's the dilemma? Sheesh.

[Barry Goldwater]

Makes one wonder if the Constitution is constitutional.

[Mr. Bird]

There is no federal issue involved here

Well, the Feds can involve themselves in state elections if there is reason to believe that those elections violate the rights granted in the U.S. constitution to the constituents (or a portion thereof) of that state. But these guys don't do a very good job of making that case here.

[goldstategop]

Ask the Nevada Supreme Court. They thought part of their own Constitution was "unconstitutional" when it stood in the way of their liberal judicial activism.

[Chad Fairbanks]

They can't see it, because that Ivory Tower they live in really reflects the sun and it gets in their eyes causing temporary blindness...