Davis future in hands of California Supreme Court
DAVID KRAVETS and JIM WASSERMAN, Associated Press WritersTuesday, August 5, 2003
(08-05) 00:29 PDT SAN FRANCISCO (AP) --
The outcome of California's anything-goes recall effort appears increasingly likely to be determined by the state's highest court, where Gov. Gray Davis added his own petition Monday to a docket already crowded with legal challenges to the Oct. 7 election.
Legal experts said the governor's case is among the strongest of the five election challenges pending before the California Supreme Court, since it addresses fundamental voting rights issues.
Invoking the specter of a Florida 2000-style polling debacle, the governor's lawyers claimed voters will be disenfranchised because county elections departments don't have enough money or time to properly prepare for an October election.
They also want the court to allow Davis to add his own name to the list of replacements on the recall ballot -- a list that appears to be growing daily, with about 300 gubernatorial wannabes taking out filing papers in advance of Saturday's official filing deadline.
California election law specifically bars the subject of a recall from appearing as a replacement candidate, but the governor's lawyers say keeping his name off the list would violate the equal protection rights of Davis supporters.
And if that argument doesn't hold, Davis' lawyers are urging the court to delay the recall vote until the March primary. Without a delay, they say, the counties will have to use outdated punch-card machines and open fewer polling places to save money, confusing and inconveniencing voters.
"We're asking the Supreme Court here to avoid a train wreck," Davis' attorney, Michael Kahn, told a crowd of reporters after filing the petition in San Francisco. Kahn noted that the U.S. Supreme Court got involved in Bush v. Gore only after all manner of voting problems -- and similar legal challenges -- were raised.
By next spring, counties are expected to have replaced aging vote-counting machines that a federal judge has ordered decommissioned by March 1. The March primary -- crowded with Democratic presidential candidates -- will also be more likely to attract Democratic voters than a fall election.
The four other Supreme Court challenges include two that would reduce the two-part Oct. 7 ballot to a simple yes or no decision on the recall, eliminating any vote for successors and replacing Davis with Lt. Gov Cruz Bustamante, a fellow Democrat.
Another would remove two propositions from the recall ballot -- including the hot-button "racial privacy initiative" that some experts predict will drive more conservatives than liberals to the polls. The fifth petition questions the $3,500 fee and 65 signatures needed to get on the recall ballot.
The National Association for the Advancement of Colored People has raised complaints similar to the issues cited in the petition Davis filed Monday.
"This case has real potential," said Loyola Law School professor Rick Hasen, an election law expert.
Still, it's anyone's guess which way the justices -- six Republicans and one Democrat -- will rule.
Politically, it will be a slam dunk for the Democrats if the court decides the state constitution requires that Bustamante succeed Davis, said Mark Petracca, a University of California, Irvine political science professor.
Though Republicans would "put all their energies into absolutely crucifying Davis," Petracca said, "in some ways it doesn't end up mattering. My guess is, interest in the recall plummets."
The California constitution, amended by voters in 1974, demands a second-in-command. It also says the purpose of a recall election is "to determine whether to recall an officer and, if appropriate, to elect a successor."
"We have already elected the successor, Cruz Bustamante, last year," said Scott Rafferty, an attorney for former state legislator Barry Keene, who wrote the constitutional provision.
The words, "if appropriate," refers to elected offices that don't have constitutionally mandated successors, Rafferty and Keene maintain.
Hasen doubts that argument will persuade the court.
"The old California Constitution in 1911 was pretty clear that there would be a two-part question," Hasen said, adding that Keene's interpretation is nowhere to be found in the ballot pamphlet or legislative history of the change.
Consultants to the recall campaign called the idea of a Davis recall without Republican challengers "preposterous, ridiculous" and unlikely.
"A meteor can fall on the Capitol building and kill all the legislators, too," quipped Recall Davis Committee head Howard Kaloogian. "That's more likely than Bustamante becoming governor by stepping into it."
U.S. Rep. Darrell Issa, R-Vista, who bankrolled the gathering of the more than 900,000 signatures that qualified the recall, has said he'll run. Other candidates include Republican businessman Bill Simon, Hustler magazine publisher Larry Flynt, Green Party candidate Peter Camejo and a long list of gadflies and publicity seekers who could prove to be spoilers on election day.
Recall consultant Sal Russo said blocking these candidates from the ballot would cause a "serious voter revolt" that would damage the Supreme Court.
Field Poll spokesman Mark DiCamillo said his organization hasn't polled voters about one possible legal outcome -- what in effect would be a Davis-Bustamante contest. But he calls the growing range of scenarios a "speculative wonderland."
Editors: Associated Press Writer David Kravets reported from San Francisco; Associated Press Writer Jim Wasserman from Sacramento.
