More recall litigation: Brynes v. Bustamante Scott Rafferty reports: "The California Supreme Court this evening issued an order directing the Lieutenant Governor to respond to a petition for a writ directing him to vacate the proclamation setting a special election. The petition was filed by Redwood City attorney Andrew Byrnes and Barry Keene, the author of the recall provisions in the California Constitution. The response must be filed by noon Monday."
Case information is available from the California Supreme Court here.
UPDATE: The petition is available here.
Ascertaining the meaning of the "if appropriate" language in the California Constitution Dan Weintraub blogs here that former state legislator Barry Keene, who helped draft the 1974 "if appropriate" language that is the subject of one of the recall lawsuits, "has researched his records and refreshed his memory of the 1974 amendment he sponsored that added those words while striking hundreds of others from the recall provision. When [Weintraub] first spoke to him a week ago, Keene said he did not remember why he put the words in there. Now he does. He says they were intended to ensure that the lieutenant governor would become governor in the case of a recall. "
I don't think such after the fact testimony would be admissible. Here is what the California Supreme Court said about the kinds of materials relevant to interpreting constitutional amendments:
Where a provision in the Constitution is ambiguous, a court must ordinarily adopt that interpretation which carries out the intent and objective of the drafters of the provision and the people by whose vote it was adopted. (See Story v. Richardson (1921) 186 Cal. 162, 165, 198 P. 1057; Bakkenson v. Superior Court (1925) 197 Cal. 504, 509 510-511, 241 P. 874; Kaiser v. Hopkins (1936) 6 Cal.2d 537, 539, 58 P.2d 1278; State Board of Education v. Levit, supra, 52 Cal.2d 441, 462-463, 343 P.2d 8; Flood v. Riggs (1978) 80 Cal.App.3d 138, 152, 145 Cal.Rptr. 573.) To ascertain the intent and objective of an ambiguous constitutional provision, a court may consider official reports of the Constitution Revision Commission (District Election Committee v. O'Connor (1978) 78 Cal.App.3d 261, 270, 144 Cal.Rptr. 442), the record of the debates (see State Board of Education v. Levit, supra, 52 Cal.2d at p. 462, 343 P.2d 8; Pitts v. Reagan (1971) 14 Cal.App.3d 112, 118, 92 Cal.Rptr. 27), legislative committee reports (see Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 573, 96 Cal.Rptr. 697, 488 P.2d 1; Miro v. Superior Court (1970) 5 Cal.App.3d 87, 99, 84 Cal.Rptr. 874; Arellano v. Moreno (1973) 33 Cal.App.3d 877, 884, 109 Cal.Rptr. 421), contemporaneous exposition or interpretation of the provision (Carter v. Commission on Qualifications of Judicial Appointments (1939) 14 Cal.2d 179, 185, 93 P.2d 140), and written arguments in voter pamphlets (White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222).
Mosk v. Superior Court, 25 Cal. 3d 474, 495 (1979) (overruled on other grounds).
Keene's statements now don't fall into any of these categories. Importantly, it is not a "contemporaneous exposition or interpretation." A statement made at the time of litigation may be self-serving, and more importantly, and unexpressed statement of intent by a drafter could not have been part of the intent of the voters who have approved the constitutional amendment.
According to the papers filed on behalf of Frankel in the Frankel v. Shelley case, "We have been able to locate nothing in the legislative history of what became ACA No. 29 that comments on the reasons for that amendment. Nor is there any comment on that language in the official ballot pamphlet."
I don't think that Keene's statements add anything. For my earlier views on how the "if appropriate" language should be interpreted, see here.
"In Economic Downturns, Recalls May Spread" A.P. offers this report. I am skeptical. California is unique not only in low signatures thresholds (12% compared to the usual 25%), but also in the extent to which many people dislike the governor. If this recall takes place on October 7 with a ballot containing over 100 candidates whose names are randomly placed on the ballot, I think there will be lots of popular backlash against the use of the recall device any time soon.
Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution's separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight.
Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court's current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement.
With McCain-Feingold poised to arrive shortly at the Supreme Court - and with a sharp division over severability among the special panel's judges - the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development.
"Judge Strikes Down Portion of Recall Law" A.P. offers this early report. The provision in question is the one requiring a vote on part one (should Davis be recalled) in order for a vote on part two (if so, who should be Davis's successor) to count. I understand he held the election can still go forward. More details when I have them. Here is an earlier story from the San Diego Union-Tribune. UPDATE:Here is an updated report.
Still more recall lawsuits A.P. offers this report, indicating that a retired attorney, James Frankel, has filed a writ petition with the California Supreme Court on the "if appropriate' issue. It appears that the California Supreme Court has ordered opposition filed on this case as well by the California Secretary of State. See here for the register of actions on Frankel v. Shelley.
Mistaken column on recall lawThis oped by Harley Sorenson in the San Francisco Chronicle asks Governor Davis to resign to prevent the recall, allowing the Democratic Lt. Governor, Cruz Bustamante, to take over. To add a twist, Sorenson suggests, "Davis could resign, Bustamante would take over, Bustamante would then appoint Davis as his lieutenant governor and then resign himself, propelling Davis back into the governor's chair. Davis could then appoint Bustamante lieutenant governor, and everything would be back to what the voters decided last November." Though noting potential term limits problems, Sorenson ignores the particular provision of the Elections Code that provides the recall election goes forward once the recall petitions have been filed. Though there was some dispute over precisely when "filing" took place, it certainly took place by last week when the Secretary of State certified the recall election. So Sorenson's idea simply cannot work.
Recall news and commentary The New York Times has stories here (on the legal aspects), here and here, with an editorial here. The Los Angeles Times has stories here and here (on problems with election administration). The San Jose Mercury News has this story on likely recall candidates. The Sacramento Bee offers stories here and here (a brief article on legal issues). The Contra Costa Times has a story here and another on election administration issues here. The Monterey County Herald reports here on complications created by setting the recall for the same date as an all-mail county election. The Modesto Beechronicles election administration challenges there. The San Francisco Chronicle's updated story on court challenges is here. Another column in that newspaper details that Audie Bock, who has run as a Democrat and a Green (the only Green ever elected to the state Assembly), has decided to run in the recall.
Brown to D.C. Circuit? Impact on Recall? Dan Weintraub reports here that President Bush has decided to nominate California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit. If Democrats don't filibuster (a big if, no doubt), and Brown leaves for D.C., will Davis name a replacement? Will that replacement end up deciding recall challenges? UPDATE: Here's a link to an earlier post indicating why I think Brown will face a filibuster.
UPDATE 2: A number of people have written in to say that even if Brown faces no filibuster, the chances of her being confirmed before the recall controversy ends are extremely small.
As recognized by both the Supreme Court and our circuit, a Section 2 "totality of the circumstances" inquiry requires courts to consider how a challenged voting practice interacts with external factors such as "social and historical conditions" to result in denial of the right to vote on account of race or color. Thornburg v. Gingles, 478 U.S. 30, 47 (1986); see also Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595-96 (9th Cir. 1997). Because a Section 2 analysis clearly requires that we consider factors external to the challenged voting mechanism itself, we hold that evidence of discrimination within the criminal justice system can be relevant to a Section 2 analysis. In light of the district court’s having improperly disregarded this evidence, combined with its assessment that Plaintiffs’ evidence of discrimination in Washington’s criminal justice system was "compelling," we reverse and remand for further proceedings.
[S]uppose that 49% of the voters favor keeping Davis, but he is recalled because more than 50% vote against him. Suppose further that there are successor candidates on the ballot, and that the leading vote getter among them - call him candidate A (for Arnold?) - gets only 10% of the successor vote. Can it be that a candidate with 10% support will oust a governor with 49% support?
If so, could this result be squared with the venerable constitutional principle of one-person-one-vote, where everyone's vote is supposed to be counted equally? And what about Bush v. Gore, in which the U.S. Supreme Court reaffirmed that the Equal Protection Clause of the Fourteenth Amendment requires that each voter's ballot be treated similarly to all others'?
Before Bush v. Gore, I think this argument would have been laughed out of court. After the case, I think it is a colorable argument, but one that probably should not succeed--though for different reasons from those raised by the professors. The two parts of the recall ask different questions. The first part asks if a majority wants someone---anyone---to replace Davis. If the answer to that question is yes, only then does the second part come into play---who should the replacement be. It does not appear to value one person's vote over that of another to use a plurality rule after a majority have voted that a plurality should control the second part of the ballot. But I agree that Bush v. Gore is sufficiently murky that this kind of claim before a sympathetic judge could get serious consideration.
(2) Here is the second provocative point raised by Amar and Brownstein:
[California Elections Code s]ection 11382 provides that "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." Put simply, this requirement conditions the right to vote for a successor to a recalled official on the voter's willingness to weigh in on the recall itself, by voting for or against the recall measure. But what if the voter's ideological preference was to abstain from voting on that issue?
That's where [Buckley v. American Constitutional Law Foundation] becomes relevant once again. Recall that ACLF held that Colorado could not constitutionally burden participation in political conversations by conditioning signature gathering for initiative petitions on an individual's registration as a voter. By the same logic, courts may well hold that California may not constitutionally condition the right to vote on an individual's prior voting history.
I am skeptical of this claim as well. On this point, ACLF is in tension with other United States Supreme Court cases such as Burdick v. Takushi, 528 U.S. 428 (1992) rejecting the idea that voting has expressive value, holding that ballots are for choosing candidates, not for political expression. (For more on expressive voting, see Adam Winkler, Note, Expressive Voting, 68 NYU Law Review 330 (1993)). I don't think the part of ACLF that Amar and Brownstein refer to would hold up to further Supreme Court scrutiny, though a lower court following just ACLF could well strike down the California statute.
UPDATE: Marty Lederman adds his thoughts here.
Davis Recall Election set for October 7; now what? The A.P. report is here. Bustamante has said that the election ballot will have two parts, based on an interpretation of the Secretary of State. What is likely to happen next is a lawsuit brought against the Secretary of State, perhaps filed directly in the California Supreme Court, challenging that interpretation. Also, I would not be surprised to see lawsuits (1) challenging the rules for nominating candidates (see earlier posts on this point below); and (2) challenging the campaign finance rules. This is in addition to the lawsuits already filed challenging the petition circulators as out-of-state voters and challenging the rule that only those persons who vote for or against the recall have their votes counted for successors. There is also the administrative complaint accusing Darrell Issa of soliciting contributions for the recall in violation of federal campaign finance laws. On the circulators suit, I heard a radio report this morning, but so far can find no independent confirmation, that the California Supreme Court has agreed to hear the suit challenging the trial court's denial of a temporary restraining order to prevent certification of the recall. Even if this is not now moot, this would be a surprising development. UPDATE: The radio report was incorrect. The California Supreme Court has not ruled on the petition. Case information is here.
1. Legislative history of the "if appropriate" argument I have already explained here and here that Bustamante's reading of the California Constitution's "if appropriate" language is not the most natural reading of the constitutional provision. (The provision reads: "An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.")
But I thought there might be something contrary in the legislative history of the provision. The provision was put on the ballot by the legislature in 1974 as Proposition 9 and approved by the voters. Under California law, I believe the only legislative history that matters here is what is in the ballot pamphlet.
It is clear that the prior constitutional provision, amended in 1974, allowed for recall of the governor. Section 1 of the old constitutional provision began: "Every elective public officer of the State of California may be removed from office at any time by the electors entitled to vote for a successor of such incumbent...." It continues: "There shall be printed on the recall ballot as to every officer whose recall is to be voted on thereat the following question....On such ballots under each such question there shall also be printed the names of those persons who have been nominated as candidates to succeed the person recalled, in case he shall be removed from office....If a majority shall vote "Yes", said incumbent shall thereupon be deemed removed from such office, upon the qualifications of his successor."
I have examined the legislative analyst's analysis as well as the arguments for and against Proposition 9. Nowhere does anyone mention what would be a very radical change in the law: filling a governor's recall with the lieutenant governor rather than with a successor elected at the recall election. To the contrary, the legislative analyst explains that "The state Constitution presently contains a recall procedure which allows voters to remove a state elected official from office before the official's term of office has ended....This proposition clarifies the recall provisions of the Constitution." The main argument against the proposition: "It removes from the State Constitution such specific provisions and procedures such as the means of circulating recall petitions.....[T]his proposal gives control of these matters to the Legislature...." No mention in a change in the rules on the governor; one would have expected it there if the change indeed was intended and clear enough to opponents of the measure.
Nothing here supports Bustamante's interpretation.
2. How will the nominations process work? Fred Woocher found a big hole in the statutory scheme, detailed here. The question is what are the procedures for nominating someone to be on the recall ballot as a Davis replacement? The answer under the statutes is unclear. The Secretary of State wants to point to Elections Code section 8062 (65 signatures and $3,500), part of a chapter that, by its own terms "does not apply to...recall elections." (Elections Code section 8001).
I did find a bit of history. The California Constitution, as Fred has mentioned, required nominating petitions singed by "at least one per cent of the total number of votes cast in the last preceding election for all candidates for the office which the incumbent sought to be removed occupies." In 1967, the Legislature adopted former Elections Code section 23631, which provided that "Nominations for candidates for any office to be filled at a recall election shall be made in the manner prescribed for nominations for candidates at general district elections." Stats 1967, ch. 28, sec. 2. (UPDATE: Fred Woocher writes that this 1967 amendment may have applied only to local elections. That makes sense, given the explict constitutional provision.)
In 1974, along with Proposition 9, the Legislature repealed section 23631 and replaced it with a section 27008: "Any person may be nominated for the office which is to be filled at any recall election by a petition signed by electors, qualified to vote at such recall election, equal to at least 1 percent of the total number of votes cast in the last preceding election for all candidates for the office which the incumbent sought to be removed now occupies. Each such nominating petition shall be filed with the Secretary of State not less than 25 days before such recall election."
Section 11381, added in 1994, changed the statutes to read: "Nominations of candidates to succeed the recalled officers shall be made in the manner prescribed for nominating a candidate to that office in a regular election insofar as that procedure is consistent with this article. " The section then listed 3 exceptions: (1) the papers are due 68 days before the election (the Legislature later changed this to 59 days); (2) certification must be within 65 days prior to the election (these rules were also later tweaked by the legislature); and (3) the target of a recall cannot be a candidate to succeed himself or herself.
In short, the history shows that it was the 1994 legislature, amending the Elections Code to make a great many changes, changed the rules for nominations in a way that has created a hole in the statutory scheme.
But Bustamante refused to say whether he would call for the election of a Davis successor on the same ballot as the recall question.
When a governor faces a recall vote, the state Constitution requires the lieutenant governor to set the date for it — and to call for the election of a successor "if appropriate."
Bustamante, though, said it was not his role to decide whether a Davis recall ballot would include a vote on potential successors.
"My job is to set the date," he said.
Asked who would decide whether a simultaneous vote on a Davis successor occurs, Bustamante invoked the obscure Commission on the Governorship.
"I think it would take the commission and the California Supreme Court to make that decision," he said.
State law empowers the commission to "petition the Supreme Court to determine any questions that arise relating to vacancies in and succession to the office of Governor."
The commission chairman would be Senate President Pro Tem John Burton. The other members would be Assembly Speaker Herb Wesson, the University of California president, the Cal State system's chancellor and the governor's director of finance.
Burton, a San Francisco Democrat, said he was checking on his role as chairman, but he cast doubt on whether the panel was relevant to the recall. Burton said it was clear to him that the election of a successor would be on the ballot with the recall.
The law that sets up the commission is one of many under intense scrutiny by California officials and election lawyers.
Facing the biggest decision of his career, Lt. Gov. Cruz Bustamante said Tuesday he will likely take no more than 24 hours from the day the choice is his to set the date for the recall election of Gov. Gray Davis.
But he said he will leave to an independent commission and the California Supreme Court a decision on whether he becomes governor himself -- without an election to determine a successor -- if Davis is recalled....
After consulting with lawyers from the offices of the state attorney general and legislative counsel, Bustamante said he believes the California Supreme Court will ultimately decide a successor should Davis be recalled. The interpretation calls into question the widespread assumption that the election would determine a possible successor as well.
"Article 5, Section 10 of the Constitution states the lieutenant governor becomes governor in the event of a vacancy," said Deborah Pacyna, a spokeswoman for Bustamante. "It provides that the state Supreme Court has exclusive jurisdiction to determine questions regarding succession. And it calls for a body, the Commission on the Governorship, to be created by the Legislature to consider such questions."
The commission has exclusive authority to petition the Supreme Court regarding succession to the office of governor, Pacyna said. The panel's chairman would be Senate President John Burton. The other members would be Assembly Speaker Herb Wesson, the University of California president, the California State University chancellor, and the governor's director of finance.
The involvement of the commission and the state's highest court raises the prospect of added confusion about the final composition of the recall ballot.
The law that sets up the commission is one of many under intense scrutiny by California officials and election lawyers.
Dan Weintraub of the Bee calls this move by Bustamante "stunning." After explaining why he disagrees with Bustamante's interpretation of the Constitution (see my earlier posts on that here and here), Weintraub concludes: "Bustamante is making mischief here, at some peril to the state and, I would suggest, at great peril to his own political career."
Although I agree with Weintraub that Bustamante is probably incorrect on the interpretation of the California Constitution's "as appropriate" language, I very much like the idea of getting the California Supreme Court involved (though not necessarily through the obscure "Committee on the Governorship"). The California Court can then definitively reject the "as appropriate" theory, and, more importantly, determine the criteria for candidates to be nominated to the ballot (i.e., do the rules for nominations in direct primaries apply to recall nominations, including for independent candidates?), a matter of more than a little controversy since Fred Woocher pressed the point here.
Indeed, if I were Secretary of State Shelley, I would not wait for Bustamante to act. I would immediately file an original proceeding in the California Supreme Court seeking a declaratory judgment on all these issues. By acting immediately and giving the California Supreme Court a chance to gear up, the Court can move expeditiously to handle this matter in a definitive and helpful way. Resort to the Court seems necessary and inevitable, given the mess of California's recall scheme. If the California Supreme Court believes the Committee on the Governship has the exclusive right to raise these questions, it will deny Shelley's writ on that basis, giving the Committee a chance to file the same papers to get clarification.
Finally, we should be careful, whatever happens, not to blame the courts for this mess (see my earlier argument on this point here). This is the fault of the drafters of the California constitution's recall provisions and the legislators who drafted the California recall statutes.
I was quite taken by the discussion on how candidates will be nominated in the soon to be recall. Two thoughts: First, isn't there precedence in how candidates filed in the three 1995 legislative recall elections? The Secretary of State at the time must have set out a standard as those were 60 to 80 days elections as well. Second, a court let BT Collins run for the Assembly some years back even though he did not submit the requisite number of signatures for the office; and March Fong Eu was allowed on the ballot even thought she missed a deadline. It seems that the courts very liberally interpret the candidate qualification process.
When I asked Tony for more detail on these cases, he followed up with the following:
The three recalls involved Assembly members Paul Horcher (R-Diamond Bar), Doris Allen (R-Cypress) and Mike Machado (D-Stockton). All of them had helped keep Willie Brown or in Allen's case, the Dems in office when the Assembly was 41 GOP (1995). Horcher and Allen did so as Reps and were recalled. Machado beat the recall because he was a Dem voting for a Dem speaker. But in each case, adequate time was available for replacement candidates to appear on the ballot. Gary Miller replaced Horcher and Scott Baugh replaced Allen.
I agree that practice may be useful in construing the meaning of the statutes, and that the Secretary of State's longstanding interpretation may well be entitled to some deference. The time period does not seem to be much of an issue. The recall statutes are clear that it is 59 days. The larger question is the requisite number of signatures and how to deal with independent candidates. And the history may not shed too much light on that.
What would be best would be for Shelley to seek a declaratory judgment to get all of this squared away, as soon as possible, before any potential candidates have to jump through hoops to get on the ballot.
New legal mess on requirements to become a candidate on a recall ballot Fred Woocher has recently posted to the election law listserv about another potential minefield in the upcoming California recall: the requirements to become a candidate to run on the ballot. Everyone has been assuming (including the Secretary of State) that one becomes a candidate for the recall ballot by collecting 65 signatures and paying a $3,500 fee. Fred plausibly suggests that this requirement, containined in another part of the California Elections Code, by its terms does not apply to recall elections. (The requirements appear to create serious problems for independent candidates as well). If Fred is right, then the question becomes: what are the requirements to become a candidates?
This is a problem of some urgency. Things may move quickly, and depending upon when the recall election is called, there may be a very short window to qualify to be a candidate. Of course, that assumes people know how to qualify to be a candidate. Could litigation over this issue be a means to delay the recall vote until the March 2004 election, as anti-recall forces want?
Other readers take issue with my natural reading analysis below. David Ettinger, for example, writes: "I think a more natural reading of 'if appropriate' is that it is 'appropriate' to elect a successor if the recall succeeds. If the voters reject the recall, then the election of a successor is not appropriate. I think the 'if appropriate' language simply recognizes the conditional nature of the successor part of the election." I agree that this is at least as natural a reading of the text as my reading, and certainly more natural than the alternative floated in Walters' column.
SEC. 15. (a) An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.
(b) A recall election may be conducted within 180 days from the date of certification of sufficient signatures in order that the
election may be consolidated with the next regularly scheduled election occurring wholly or partially within the same jurisdiction in which the recall election is held, if the number of voters eligible to vote at that next regularly scheduled election equal at least 50 percent of all the voters eligible to vote at the recall election.
(c) If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. The officer may not be a candidate, nor shall there be any candidacy for an office filled pursuant to subdivision (d) of Section 16 of Article VI.
Section 16 of Article VI, referred to in the last part of Article II, section 15(c), provides the rules for judicial selection.
The most natural reading of the "if appropriate" language in Article II, section 15(a) is to read it in conjunction with section 15(c)---providing that there "shall not be any candidacy for an office filled" for a judicial recall. Reading the sections together, it appears that it is not "appropriate" to list replacement candidates when a judge is being recalled. But there may be other readings that are plausible, particularly if there is some legislative history indicating why the "as appropriate" language was added.
A reader also makes another argument, but one I find weaker. The argument is that Article 15(c) is unambiguous that so long as there is at least one candidate listed as a replacement on the recall ballot, the recalled officer must be removed. But I think section (c) only applies if it is "appropriate" to have had candidates listed for office. (UPDATE: The reader further explains: "Actually, what I thought was unambiguous is that the only way the recall could result in the
Lt. Governor replacing Davis, given that the recall succeeded, is if nobody had bothered to run to replace Davis. (Or, I suppose, if the Lt. Governor himself got on the ballot, and won...) The recall doesn't create a vacancy in any sense the Lt. Governor could exploit, otherwise, since it specifies the winner of the election takes the place of the recalled officeholder.")
Maybe the thing to do---to avoid a problem of laches (delay)---is for anyone who likes this theory to advance it before there is any recall election in which candidates are listed on the ballot. For to do it after the election is going to make it look like the courts are taking the election away from any "victor" who gets the plurality of the votes cast should voters choose to recall Davis.
Fascinating new argument that only the Lt. Gov. may succeed Gray Davis if Davis loses the recall election Dan Walters of the Sacramento Bee offers this column. The argument is as follows: California statutes provide for a two part recall ballot, with part 1 about the recall of Davis and part 2 to choose Davis's successor contingent on a 50% +1 vote in part 1. The California Constitution says that lieutenant governor to call an election, and defines his function this way: "An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures." (Emphasis added, and in the case of the recall of a governor, the lt. governor calls the election). Another provision of the Constitution provides that the Lt. Governor succeeds the governor if there is a vacancy. Thus, the argument is that the California statute violates the California Constitution, and if Davis is recalled, the Lt. Governor automatically becomes governor.
Very provocative theory. I have not done any research into this Clause of the California constitution. What did the drafters have in mind with the term "if appropriate"? Might they have been referring to judicial recalls, where the governor would appoint a replacement (California's judges generally begin their posts with a judicial appointment and stand for periodic retention elections)? Unlike the current anti-recall lawsuit, this one has some real potential, depending upon what research about the California constitution shows.
The bounds of election law commentary See this post by Dan Weintraub. I don't know the lawyer who is involved, but I think Dan is coming down too hard on having a lawyer offer "expert opinion" on things like how the recall law is structured (e.g., a single ballot to remove the official and choose a successor). Lawyers certainly may have opinions on policy (as opposed to law) which may be no more expert than anyone else's, but because they tend to read the details of laws, and understand how law effectuates policy and interacts with legal constraints such as constitutional requirements, lawyers' opinions on policy tend to be valuable for a lay audience.
Would it be rational for Democrats to filibuster the nomination of California Supreme Court Justice Janice Rogers Brown for a seat on the D.C. Circuit Court of Appeals? Howard Bashman blogs here about the possibility of the Bush Administration nominating California Supreme Court Justice Brown for a seat on the D.C. Circuit. Howard calls it a "brilliant political move." Perhaps. Here's how a Brown nomination differs from the nomination of Miguel Estrada, which has been subject to a filibuster in the Senate. Both Brown and Estrada are seen as very conservative nominees. Both are minorities (Brown is African-American; Estrada is Hispanic, born in Honduras). The concern of some Democrats is that either Brown or Estrada could be nominated to the United States Supreme Court if a vacancy arises. As I have argued earlier, the Democrats have followed a rational strategy of blocking Estrada for a D.C. Circuit post so that they can preserve an argument should he ever be nominated for the Supreme Court that he lacks judicial experience. The Estrada filibuster also plays to the Democratic base, because Estrada (rightly or wrongly) has been painted a conservative extremist there.
The first rationale for an Estrada filibuster does not apply to a potential Brown filibuster. She already has judicial experience--on the California Supreme Court. So the question will turn on the second question: does the Democratic base sufficiently believe Justice Brown is too conservative, and if so, is it worth the political capital that might be expended to filibuster an African-American woman candidate? I have not looked at Justice Brown's opinions in any detail, but assuming (as I have heard) that her opinions are quite conservative, I think Democrats could well decide to filibuster. Democrats still remember the Clarence Thomas hearings, and particularly the decision of some Democrats to support Thomas, despite his conservative views, probably in part because of his race.
These arguments point to why Democrats might well filibuster a nomination of Brown to the Supreme Court. But why filibuster for the D.C. Circuit? It might be difficult for Democrats to support Brown for a D.C. Circuit nomination and then turn around and vote the other way for the Supreme Court. (Is she good enough for one court but not the other?) If I had to predict, I would predict a filibuster of Brown for the D.C. Circuit position.