Election Law
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The law of politics and the politics of law: election law, the California recall, campaign finance, legislation, voting rights, initiatives, redistricting

Rick Hasen's web log (blog)

Thursday, July 31, 2003
New case filed in California Supreme Court challenging signature requirements It is Burton v. Shelley, Case Number S117834. We need a spreadsheet to keep track of all of the litigation.


posted by Rick 8:47 AM
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Light blogging through next Thursday I'll be on the road with limited access to e-mail. I hope to post at least once a day but it depends upon access to the web.


posted by Rick 7:47 AM
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"Voting sites in recall election consolidated to save money and time; Some black religious leaders fear community will be disenfranchised" The Oakland Tribune offers this report.


posted by Rick 7:37 AM
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Opinion in San Diego suit now online It is here (via Votelaw).


posted by Rick 7:17 AM
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Wednesday, July 30, 2003
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.


posted by Rick 10:52 PM
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Looks like the punchcard suit (also including some voting rights claims about the number of precincts) may come as early as tomorrow Dan Weintraub again has the scoop.


posted by Rick 10:02 PM
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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.


posted by Rick 2:10 PM
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"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.


posted by Rick 1:28 PM
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President Bush on the recall David Ettinger sends the following along from the President's press conference:
    QUESTION: Good morning, Mr. President. Since California is on your mind, I'd like to ask you about the recall campaign.

    Since you're not only the leader of this country, but as someone who came into office under extraordinarily partisan circumstances, do you view this recall, which was funded almost entirely by one wealthy Republican who would like to be governor, as a legitimate democratic exercise? And do you have a candidate in this fight, since one of the potential successors is somebody you've backed before?

    BUSH: Ed, let me tell you how I view it. I've got a lot of things on my mind and I view it like an interested political observer would view it. You know, it's, kind of, a funny--we're not used to recalls in Texas, for example, thankfully.

    I think that the most important opinion is not mine, but it's the people of--the Californians. Their opinion is what matters on the recall.

    BUSH: It's their decision to decide whether or not there will be a recall, which they decided. And now they get to decide who the governor is going to be. And that's really my only comment I got.


posted by Rick 10:27 AM
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Opeds on new potential FEC nominee Roll Call offers this editorial and this oped by Norm Ornstein.


posted by Rick 7:22 AM
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More recall news and commentary Stories in the San Diego Union-Tribune (and here); the San Jose Mercury News (noting that so far 123 Californians have taken out nomination papers); the Sacramento Bee; and the Contra Costa Times (and here on Audie Bock and here on Democrats trying to draft Dianne Feinstein). The Los Angeles Times offers "Record Does Not Support All of Candidate Issa's Claims" and "2 Democrats In Congress Urge Feinstein to Enter Recall Race."


posted by Rick 7:20 AM
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Tuesday, July 29, 2003
Nixing nuclear option For months, I have been predicting that rational Republicans would not use a "nuclear option" in the Senate (essentially changing the Senate's rules to overcome a filibuster with a majority vote). Now comes this story from The Hill (link via How Appealing) confirming that Republicans indeed are acting rationally in this matter.


posted by Rick 9:01 PM
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The next likely recall related lawsuit? Use of punch card voting in only some California counties See this New York Times report (on second page of article).


posted by Rick 8:20 PM
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Press report: Shelley will not appeal San Diego recall case See this San Francisco Chronicle article. I wonder whether someone else might try to intervene to get the Ninth Circuit to involve itself in this case and delay things. Perhaps that is too cynical. UPDATE: The Times article quoted in the post above this one also indicates that the state will not appeal the San Diego ruling.


posted by Rick 8:12 PM
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Severability and McCain-Feingold Michael D. Shumsky has posted "Severability, Unseverability. and the Rule of Law," forthcoming in the Harvard Journal on Legislation. Here's the abstract:
    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.


posted by Rick 3:58 PM
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Here's an issue for post-recall litigation Davis survives the recall, and claims reimbursement under the California Constitution. How much does he get? This article notes the open questions.


posted by Rick 3:55 PM
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Legal argument in Frankel writ petition Here is the important part of the legal argument in the writ petition filed in the "if appropriate" case:
    ARGUMENT
    I.
    INCLUSION ON THE RECALL BALLOT CANDIDATES TO SUCCEED THE GOVERNOR IF THE RECALL IS SUCCESSFUL IS
    UNAUTHORIZED AND UNNECESSARY.

    Article V, Section 10 of the California provides that “[t]he Lieutenant Governor shall become Governor when a vacancy occursin the office of Governor.”

    Article II, Section 15 of the California Constitution provides as follows:
    (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.
    * * * *
    (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. (Emphasis added)1

    (Footnote 1: The limiting language, “if appropriate,” was added to the Constitution in 1974. In that year, the Legislature placed on the ballot a constitutional revision that had its origin in the Constitutional Revision Commission. The “if appropriate” language was added by an amendment when the proposal was in committee. See Exhibit B attached hereto. 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. See Exhibit C attached hereto. Accordingly, the constitutional language at issue here must be interpreted in accordance with the principles of interpretation discussed in the text above.)

    Section 15(a) plainly implies that there are some circumstances in which it is not “appropriate” to elect a successor. The recall of a Governor—an office for which the Constitution specifies the successor in the event of a “vacancy” for any reason—is such a circumstance. There is no need to elect a successor when the electorate did exactly that at the preceding election: the people elected the Lieutenant Governor who is, under Article V, Section 10, the successor whenever there is a vacancy in the office of Governor. This interpretation of Section 15 is supported by settled principles of constitutional interpretation. The first is the principle that the Constitution is to be interpreted as a whole, giving effect to every provision and harmonizing potential inconsistencies wherever possible. Miller v. Superior Court, 21 Cal. 4th 883, 895 (1999); City & County of San Francisco v. County of San Mateo, 10 Cal. 4th 554, 563 (1995). The second is the principle that where potential conflicts appear between two provisions, the more specific provision prevails over the more general provision, even where the more specific provision was enacted first and the more general provision was enacted thereafter. Miller, 21 Cal. 4th at 895. The third is that in interpreting a provision of the Constitution, every word and phrase is to be given meaning, wherever possible. City & County of San Francisco v. Farrell, 32 Cal. 3d 47, 54 (1982).

    Here, in connection with a recall, the Constitution has provided for the election of the recalled officer’s successor in some but not all instances—i.e., only where a successor election is “appropriate.” The Constitution also provides that if the office of Governor ever becomes vacant, the Lieutenant Governor shall become the Governor. This provision applies to any vacancy, whether caused by resignation, death or removal by impeachment.2 A vacancy caused by a successful recall of the Governor is no different. In case of any vacancy in the office of Governor, the Constitution specifies that the Lieutenant Governor shall succeed to that office. The latter provision is specifically applicable to the office of Governor, and to no other office; the Constitution does not provide for the succession in the event of a vacancy in any other state office. By contrast, the more general former provision relating to recall applies to all State “officers.” Because a successful recall of a Governor would result in the immediate succession by the Lieutenant Governor, election of a successor in connection with the recall would be pointless and, moreover, a waste of taxpayer funds. Any other view would allow the more general provision for successor elections in “appropriate” instances to trump the specific provision for successorship in the event of a vacancy in the office of Governor, in violation of the canon of interpretation giving precedence to a specific provision over a general one in the event of a conflict.

    Moreover, if it were “appropriate” to hold an election for a recalled Governor’s successor, the term “appropriate” as used in Section 15(a) would have no meaning at all—i.e., would be surplusage, in violation of the rule that every word and phrase be given meaning if possible. It has been suggested in the press that the term “appropriate” refers to the recall of Justices of the Courts of Appeal and the Supreme Court (and to no other office). That view is erroneous: another provision—Section 15(c)—does that: Section 15(c) expressly provides that there is to be no successor election for officers selected pursuant to “subdivision (d) of Section 16 of Article VI”—the constitutional provision relating to the selection of appellate justices. The limiting phrase “if appropriate” in Section (a) would therefore have limited nothing—and would have no meaning

    (Footnote 2: Indeed, Article V, Section 10 provides that “[t]he Lieutenant Governor shall act as Governor during the impeachment, absence from the State, or other temporary disability of the Governor . . . .” (Emphasis added.))

    whatever—if it did nothing more than bar a successor election in the event of a recall of an appellate justice, which was already precluded by Section 15(c). Thus unless the canon requiring that every term be given meaning is to be disregarded, the term “appropriate” as used in Section 15(a) must refer to some other office, not to appellate justices. At a minimum, it must apply to a constitutional office forwhich the Constitution identifies an automatic successor: the office of Governor.3

    These conclusions are consistent with sound public policy and democratic principles. A majority of the electorate has already voted to select the successor of the incumbent Governor should his office become vacant for any reason, be it death, resignation, removal by impeachment or any other cause—including a recall. Being present and prepared to step in as the Governor’s successor should it become necessary is, perhaps, the most important function of the Lieutenant Governor; and the electorate surely was well aware of that great, if conditional, responsibility when it voted (independently of each voter’s preference for the office of Governor) for a Lieutenant Governor. No effort has been made to recall the Lieutenant Governor, who remains the Governor’s designated successor. This interpretation avoids a successorship election that threatens California with a political and electoral nightmare. The recall election will be held at a special election on October 7, 2003. Because there are no primaries for the successorship election, and the requirements for appearing on the ballot are relatively trivial—a

    (Footnote 3 Election Code Section 11322 provides that on “ballots at all recall elections” (other than a specified exception not applicable here), “[t]he names of the candidates nominated to succeed the officer sought to be recalled shall appear under each recall question.” But that general provision is trumped by the specific provisions of the Constitution which provide that if the Governor’s office becomes vacant, the Lieutenant Governor shall become the Governor and that there will be no successor election together with a recall unless it is “appropriate.” That is so for two reasons: first, where inconsistent, general provisions are trumped by specific provisions; and second, statutes inconsistent with the Constitution are void.)

    few thousand dollars and a handful of signatures—a large number of persons could run for the Governor’s office. As a result of low turnout and numerous candidates, the next Governor could be selected by only a small minority of eligible voters. Indeed, if the recall is successful, and a successor election is held simultaneously, the candidate who obtains the most votes in the successor election will in all probability have received a substantially smaller number of voters than the number voting to recall the incumbent Governor. To make matters worse, candidates of the Governor’s party—and, for that matter, candidates of other parties who do not believe the recall is justified —may feel obliged to refrain from declaring their candidacy, lest they be perceived as indirectly lending support to the recall.

    A democratic system designed to select a Governor truly representative of the will of the voters would almost certainly be thwarted in this scenario. In contrast, the successorship of the Lieutenant Governor would let the Governorship be filled by the public official whom the voters have already selected at a statewide general election to fill the Governor’s office should it become vacant.


posted by Rick 2:54 PM
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My Sacramento Bee oped on the recall You can now access "Horse Before Cart in Recall Challenges" at the Bee's website. Dan Weintraub also has this recall-related column.


posted by Rick 12:53 PM
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"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.


posted by Rick 12:49 PM
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Monday, July 28, 2003
Temporary e-mail address UPDATE: Loyola's e-mail is back up. My SacBee oped does not yet appear to be posted online. More this afternoon.


posted by Rick 9:34 PM
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Tuesday postings I'm flying to San Jose for the morning to tape a PBS show, Uncommon Knowledge, talking about the upcoming campaign finance case in the Supreme Court. FEC Commissioner Brad Smith is also going to be on the show, which is supposed to air around the time of oral arguments in September. I likely won't have time to post anything in the morning, but I do have an oped in Tuesday's Sacramento Bee that likely will be accessible here on Tuesday morning.


posted by Rick 9:07 PM
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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.


posted by Rick 9:00 PM
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Legislative history of recall requirements adopted by California voters in 1974 You can access at this link the pages from the ballot pamphlet in which the voters adopted Proposition 9 (1974) amending the California constitution's recall provisions. The first three pages are facsimiles taken from microfilm. The last three pages were retyped by my assistant (caution--there may be typos!). This is the history I relied upon for my earlier post on the "if appropriate" language.


posted by Rick 8:55 PM
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Amicus brief filed by me in McConnell v. FEC for the Center for Governmental Studies Today I filed a pro bono amicus brief supporting the defendants in the McCain-Feingold campaign finance case being considered by the Supreme Court. The brief, available here, was filed on behalf of the Center for Governmental Studies. It argues in favor of the constitutionality of the disclosure provisions (section 201 of BCRA) and the segregated fund requirement for corporations and unions (section 203). Briefs of the defendants are due next week.


posted by Rick 8:47 PM
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California Supreme Court orders opposition filed in Eisenberg v. Shelley The California Supreme Court this afternoon issued the following order in the case challenging the placement of the Ward Connerly initiative on the ballot with the recall: "Opposition requested From the office of Kevin Shelley, Secretary of State. The opposition is to be served and file upon petitioner and filed in this court on or before Monday August 4, 2003 by 12:00 pm. Petitioner will have until Wednesday August 6, 2003 at 12:00pm. to file a Reply." Those who want to follow the case progress can access the Court's web page for the case here.


posted by Rick 8:16 PM
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My e-mail down If you are trying to reach my regular e-mail account, you probably are getting a bounce message. I hope it will be up again shortly.

posted by Rick 8:09 PM
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New Lawsuit Being Filed in California Supreme Court over Including the Ward Connerly Initiative on the Same Ballot as the Recall As I write, attorney Jon Eisenberg is filing a writ petition in the California Supreme Court challenging the inclusion of Ward Connerly's "Racial Privacy Initiative" on the same ballot as the California recall. Here is the text from the introduction of Eisenberg's writ petition:
    A gubernatorial recall election is scheduled for October 7, 2003. The Secretary of State intends to place on the recall ballot an initiative addressing government collection of race-based statistics, which is designated Initiative Constitutional Amendment 933, and a legislative constitutional amendment addressing allocation of government funds for infrastructure expenditures, which is designated Legislative Constitutional Amendment ACA 11.

    This writ petition demonstrates that the California Constitution precludes placement of these two measures on the recall ballot, and instead requires their submission to the voters at the primary election of March 4, 2004.

    A qualified initiative shall be submitted "at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election." (Cal. Const., art. II, s 8, subd. (c).) A recall election is not a "special statewide election" at which an initiative shall be submitted. "Special statewide election" is a legal term of art referring not simply to any election other than a general election, but to specific types of elections (e.g., to fill a vacancy) that do not include recall elections. Thus, Initiative Constitutional Amendment 933 must be submitted at next year’s primary election.

    A legislative constitutional amendment that would create liability must be submitted "at a general election or at a direct primary." (Cal. Const., art. XVI, § 1.) Legislative Constitutional Amendment ACA 11 would create liability by imposing a pecuniary obligation of the Legislature to allocate funds for capital outlays by state and local government. Thus it, too, must be submitted at next year’s primary election.

    The Elections Code prescribes ample deadlines for various procedural aspects of the initiative, referendum, and legislative constitutional amendment processes that are designed to facilitate reasoned public debate and careful reflection on measures submitted to the voters. Many of those deadlines could not be met under the accelerated recall election process, with the result that the provision of adequate notice and sufficient information on measures submitted to the voters, and thus the opportunity for debate and reflection, would be undermined if such measures were placed on a recall ballot.

    For each of these reasons, judicial intervention is essential to compel the Secretary of State to perform the ministerial duty to submit these measures at the primary election of March 4, 2004, not the recall election of October 7, 2003.



posted by Rick 12:23 PM
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"Supreme Court Rejects Bid to Halt Gray Davis Recall Vote" The Recorder offers this article.


posted by Rick 10:21 AM
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Susan Estrich column on "as appropriate" theory It is available here.


posted by Rick 9:49 AM
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Oped on recall by Professors Martin and Partnoy See this New York Times oped, on the San Diego federal litigation over the format of the recall ballot.


posted by Rick 7:27 AM
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"California's Recall Election Likely to Bring Spending Frenzy" See this report, originally appearing in the Los Angeles Times.


posted by Rick 6:54 AM
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Mistaken column on recall law This 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.


posted by Rick 6:50 AM
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In today's Roll Call Today's Roll Call features this story (registration required), entitled "CFR Backers’ Next Goal: Free Air Time." There is also this oped by Federal Election Commission chair Ellen Weintraub entitled "FEC Reform Would Enshrine Partisanship."


posted by Rick 6:43 AM
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Dan Weintraub is reporting.... that Arnold Schwarzenegger had decided not to run for governor. See the story here.


posted by Rick 6:39 AM
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"Fresh Hope for Fat Cats" The New York Times offers this editorial opposing the nomination to the Federal Election Commission of Robert Lenhard.


posted by Rick 6:38 AM
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Sunday, July 27, 2003
"McCain-Feingold opponents fight for time in court" The Washington Times offers this article on attempts of the main plaintiffs' groups to exclude three other plaintiffs' groups from oral argument. Interestingly, the article fails to mention the Adams plaintiffs, who also have a different position from those of the main plaintiffs' groups.

posted by Rick 3:52 PM
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Coverage of Washington State felon voting case A.P. offers this report.


posted by Rick 6:58 AM
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Recall news Much of the news today is about yesterday's rally (for example, see this article). You can find this Q&A raising some open legal issues as though they have been resolved here. This very interesting Los Angeles Times article discusses how candidate strategies will differ with recall rules compared to normal election rules. Susan Rasky has a fascinating oped along similar lines in the newspaper. In the same issue, Leon Panetta offers "This is Direct Democracy Running Amok."


posted by Rick 6:46 AM
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"How to Vote? Let Us Count the Ways" This New York Times article talks about Arrow's theorem and agenda setting in elections in the context of a potential move in New York City to nonpartisan elections.


posted by Rick 6:37 AM
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Saturday, July 26, 2003
New York Times opeds on recall See Jill Stewart and Maureen Dowd.


posted by Rick 8:02 PM
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A.P. releases study of Florida judicial races campaign financing See here.


posted by Rick 1:18 PM
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CBS Evening News I am supposed to be talking about the legal issues surrounding the recall tonight on the CBS Evening News. UPDATE: Dan Weintraub notes here that he will be on FOXNews today at 3 pm PST talking about the recall.


posted by Rick 7:13 AM
. . .
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 Bee chronicles 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.


posted by Rick 7:03 AM
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Friday, July 25, 2003
"Byrd cuts group ties over 'soft money'" The Palm Beach Post offers this report.


posted by Rick 8:09 PM
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"Court refuses to block recall: 3 more challenges pending to test laws on election" The San Francisco Chronicle offers this report.


posted by Rick 7:28 PM
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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.


posted by Rick 2:04 PM
. . .
The benefits to plaintiffs of filing the recall lawsuit in state court The recall suit challenging the California conditional voting provision (discussed in Amar and Brownstein) was filed in federal court. Of course, both federal and state courts can entertain claims, such as this one, claiming that a state statute violates a federal constitutional right. But filing in federal court may give plaintiffs the additional advantage of delay. (Delay is seen to help Democrats.) Rather than have all the issues resolved by the California Supreme Court (though a federal issue resolved in a state court is appealable to the U.S. Supreme Court, see Bush v. Gore), the case will be in federal district court, then goes into the Ninth Circuit, and ultimately could go to the U.S. Supreme Court. Those courts might move quickly; then again, they might not.


posted by Rick 1:06 PM
. . .
More on Amar/Brownstein attack on California recall statute There's been a lot of reaction to the Amar/Brownstein piece referenced below on the election-law listserv. You can find comments here from Guy Charles, Marty Lederman, Dan Lowenstein, Adam Winkler, and others likely will be added. Here is my latest thought--the most important point of which is the following: under California law, parties may pay people to turn out to vote in elections (so long as there are no federal candidates on the ballot). Democrats can target such payments in poor neighborhoods to get out the vote. The rest of my response, including a citation to articles where I have explored payments for turnout in some detail, is available here.


posted by Rick 12:55 PM
. . .
Washington felon disenfranchisement case decided by Ninth Circuit The Ninth Circuit has reversed a summary judgment against plaintiffs challenging Washington's felon disenfranchisement laws as being racially discriminatory in violation of the Voting Rights Act. See Farrakhan v. State of Washington, No. 01-35032. From the opinion:
    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.



posted by Rick 12:07 PM
. . .
California Supreme Court denies Petition for Review on circulator petition case The text: "Petitioners seek review of the Court of Appeal's denial of their petition for writ of mandate, and petitioners also seek immediate relief in the form of an order halting all preparations for a recall election. Noting that the superior court has scheduled a hearing for August 8, 2003, to consider petitioners' allegations of irregularities in the signature collection process for the recall, the Court of Appeal concluded that the trial court did not abuse its discretion in declining to stay the recall process pending the August 8 hearing. Having considered the matter, we deny the amended petition for review and request for immediate relief filed in this court July 24, 2003. George, C.J., and Brown, J., were absent and did not participate. "
UPDATE: A.P. now offers
this report.


posted by Rick 11:02 AM
. . .
Wall Street Journal opinion pieces on California recall See here and here. (Thanks to Steven Sholk for the pointer.)


posted by Rick 10:35 AM
. . .
On radio I'll be on KCLU in Santa Barbara (88.3) at 9 am pacific time today and on KPCC (Pasadena) at 9:50 am.


posted by Rick 7:39 AM
. . .
Amar and Brownstein Findlaw column on recall Following up on my earlier Findlaw column this week, Professors Vic Amar and Alan Brownstein raise some provocative constitutional questions about the California recall. A few quick reactions:
(1) Amar and Brownstein raise an equal protection argument that's been floating around for a few weeks. Here's an excerpt:
    [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.


posted by Rick 7:27 AM
. . .
More news on post-Florida investigation See this report in Florida's Sun-Sentinel.


posted by Rick 7:12 AM
. . .
Today's recall coverage See stories in the New York Times; the Los Angeles Times (also here on the legal issues); the Washington Post; the Sacramento Bee (with Dan Walters' follow-up column on Bustamante); the San Jose Mercury News (and here); the Contra Costa Times; and the San Francisco Chronicle (on campaign finance aspects).


posted by Rick 7:07 AM
. . .
Thursday, July 24, 2003
"Democrats' FEC Choice Challenges McCain-Feingold" See this Washington Post report.


posted by Rick 8:42 PM
. . .
Shelley posts rules for governorship nominations, at least as he interprets them See here. Thanks to Dan Weintraub for the pointer.


posted by Rick 5:45 PM
. . .
"Fla. to Restore Felons' Voting Rights" A.P. offers this report.


posted by Rick 4:58 PM
. . .
"California rulings cut both ways in tribal election law cases" See this San Francisco Chronicle report.


posted by Rick 4:53 PM
. . .
More thoughts on "if appropriate" language A reader sends along the following analysis:
    After reviewing Article II, Section 15(a)-(c) of the California Constitution, I think the most natural reading is that a successor election will go forward if there is at least one candidate for the successor election. Section 15(c) specifies that the officer will be removed if there is a majority vote for removal and ", if there is a candidate, the candidate who receives a plurality is the successor." Thus, if there is no candidate, then there is no one to be the successor to the governor. It seems clear that if there is no candidate then there is no successor election.

    So, when looking at Section 15(a), the "if appropriate" language simply refers to a situation when there has been a recall, the officer is recalled, and there is at least one candidate who is seeking to be a successor to the office. It would not be appropriate to have a successor election if there is no successor candidate. If there were no successor candidate, it would seem that no successor election would be held and Bustamante would become Governor. Conversely, if there is at least one candidate then there would be a successor election.

    Of course, in a judicial election there is no successor election allowed and that is a subset of the situations covered by the "if appropriate" language. It would not be appropriate to have a successor election for a recall of a judge, because that is not allowed by another section. But the first part of Section 15(c) covers all recall elections and seems to suggest that there is no successor election if there is no candidate. Thus, the need for the "if appropriate" language in Section 15(a), because a successor election is not needed if there is no candidate. The "if appropriate" language would still be needed if only judicial recalls were being referred to, but the first paragraph of 15(c) seems to justify a broader reading of what the "if appropriate" language covers.

    By the way, I don't think there is a requirement that there be a candidate for the officer to be removed. The first part of Section 15(c) states emphatically that the officer is removed if there is a majority vote for removal and there is no requirement that there be a candidate. There is only a requirement that there be at least one candidate for there to be a successor election and therefore a successor to the office.

Thanks for writing!
UPDATE: Fred Woocher responds
here. UPDATE 2: See responses by Dan Lowenstein and Clark Kelso.


posted by Rick 4:31 PM
. . .
Illinois adopts cumulative voting for use in certain county elections The new legislation is here; details from Dan Johnson-Weinberger here.


posted by Rick 4:30 PM
. . .
Majors v. Abell decided by Indana Supreme Court Details about this campaign finance disclosure case are available here. I'll post a link to the certified question opinion when I have it.


posted by Rick 4:28 PM
. . .
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.


posted by Rick 11:01 AM
. . .
"Voting-Rights Suit Aims to Halt Santa Ana's 'Poll' on Barriers" The Los Angeles Times offers this report.


posted by Rick 6:51 AM
. . .
Lots of news coverage this morning of the recall certification and the questions surroundng the recall The New York Times offers articles here and here. The Washington Post article is here. The Los Angeles Times is here. The San Jose Mercury News is here. The San Francisco Chronicle is here. The Sacramento Bee is here and here (this second story mentions yet another lawsuit---this one on the question whether it is constitutional to prevent those who don't vote up or down on the recall to cast a vote that counts on the second part of the ballot). Dan Weintraub's Bee column is here. The Contra Costa Times is here.


posted by Rick 6:48 AM
. . .
Wednesday, July 23, 2003
"Bustamante Skirts Critical Decision About Election" See this A.P. report. See also this Bloomberg report.


posted by Rick 8:35 PM
. . .
Recall election certified See this early A.P. report. UPDATE: Here is an updated report. Also, Dan Weintraub reports that Bustamante may be backing off from his legal interpretation regarding potential successors appearing on the recall ballot.


posted by Rick 6:50 PM
. . .
Breaking recall news California Court of Appeal denies the writ petition seeking to stop the counting pending a suit on the alleged use of out-of-state circulators; petitioners have now gone to the California Supreme Court. You can find the details in this Bloomberg report. Thanks to Scott Lay for the pointer.


posted by Rick 4:25 PM
. . .
In other California election law news.... Today Judge Ohanesian of the Sacramento Superior Court ruled in three consolidated challenges to CA's 2001 redistricting plans, rejecting three petitions claiming that the redistricting violated state law. You can find the details here.


posted by Rick 4:22 PM
. . .
Is the Secretary of State's office giving out inconsistent advice on who may be nominated for office in the recall? See this set of correspondence, indicating that the answer is "yes."


posted by Rick 3:58 PM
. . .
Supreme Court denies application of McCain defendants to file a 100 page brief in BCRA case The Chief Justice has denied the McCain lawyers' motion to file a 100 page brief rather than the 75 pages that the Court had allotted to McCain. No word yet on the motions for divided oral argument.


posted by Rick 3:53 PM
. . .
Petition to California Senate President Pro Tem to Get California Supreme Court to Decide if Bustamante is Automatically Going to Be Governor if Davis is Recalled An anti-recall group has filed a petition (available here) calling on the Senator John Burton to certify to the California Supreme Court the question: "Whether a vacancy created by the recall of the Governor is filled according to Article V, Section 10 of the California Constitution, or whether it is 'appropriate' to conduct a direct election of a successor on the recall ballot." Why to Senator Burton? The California Constitution has a provision for a Committee on the Governorship to deal with vacancy and succession questions. Some have taken the position---in my view dubious---that this commission, of which Senator Burton is the chair, has exclusive jurisdiction to raise such questions with the California Supreme Court.
I've already written about the merits of the "if appropriate" argument below and find it not convincing.


posted by Rick 12:41 PM
. . .
Reader mail on recall A reader writes:
    I was reading your blog, and I had a few thoughts regarding whether or not the Lt. Governor automatically succeeds to the Governorship. I'd be interested in hearing what you think.

    Art. 5, section 10 states that the Lt. Governor shall become Governor when a VACANCY occurs in the office of Governor. Likewise, it gives the Supreme Court exclusive jurisdiction to determine all questions regarding a VACANCY. Gov't Code section 12071 similarly states that the Commission on the Governorship has exclusive authority to petition the Supreme Court to determine questions that arise relating to a VACANCY.

    It seems to me that the operative question is - if a recall is successful, is there a vacancy in the office?

    Section 11384 of the Elections code states that a recalled officer shall be removed upon the qualification of his successor. Section 11386 says that if the winner of a recall does not qualify within 10 days, the office to which he or she was elected then becomes VACANT. That suggests that if a recall is successful, as long as the successor qualifies, there is no vacancy, and Art. 5, section 10 never kicks in.

    Thoughts?

Interesting points. I think the argument is a good one, though subject to the counterargument that the California statutes cannot definitively state when a vacancy occurs under the California Constitution. Thus, for purposes of the Constitution, a court could say (though I think it unlikely to say) that a "vacancy" occurs when the governor is recalled.



posted by Rick 11:23 AM
. . .
More analysis of legal issues connected to the recall

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.



posted by Rick 10:47 AM
. . .
Big news: Bustamante appears to take the position that the recall election need not include any replacement candidates. Here is an excerpt from the Los Angeles Times report:
    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.

Here is a similar Sacramento Bee story:
    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.


posted by Rick 7:00 AM
. . .
Recall chaos predicted See "Early Recall Election Sounds Like Doomsday to Officials" in the San Francisco Chronicle; "Recall Process Befuddles Officials" in the Contra Costa Times; and "Recall May Bring Election Chaos" in the San Jose Mercury News.

posted by Rick 6:45 AM
. . .
Tuesday, July 22, 2003
Post-McCain-Feingold fundraising See this report in The Hill.


posted by Rick 9:34 PM
. . .
"FEC to Consider Lifting Ban on Soft Money for Conventions" The Washington Post offers this report.


posted by Rick 9:33 PM
. . .
Recallmania Is the California electoral system up to the task of running a recall election in 60-80 days? An official of the California Secretary of State's office speaking on background tells Dan Weintraub "no". In other recall news, tomorrow's New York Times will carry this front page (at least front web page) article: "Backer of California Recall Feels Heat Directed at Him." The Hill will have "California Recall Effort Heads into New Phase." The Christian Science Monitor offers "First Fight of 2004 Election - California Recall." The Washington Post offers this report.


posted by Rick 8:14 PM
. . .
Does Susan Estrich buy the "as appropriate" argument? See this FOXNews report.


posted by Rick 4:37 PM
. . .
"Judge Won't Dismiss Suit Against FEC" A.P. offers this report, which begins: "A judge rejected the Federal Election Commission's request that he dismiss a lawsuit filed over its failure to act on a complaint involving Attorney General John Ashcroft's 2000 Senate campaign."


posted by Rick 4:26 PM
. . .
"The California Gubernatorial Recall Debate and the Courts: Why Litigation Has Begun (and Likely Will Continue)" You can find my Findlaw guest column here.


posted by Rick 7:18 AM
. . .
"Fall recall appears to be certain: Circus of scenarios hits a critical point" See this San Francisco Chronicle report. In other recall news and commentary, see: A.P. ; the Contra Costa Times (and see here and here); the Los Angeles Times; and the Sacramento Bee (and here).

posted by Rick 7:17 AM
. . .
"DeLay Earns Wealth of Influence" The Washington Post offers this report.



posted by Rick 7:07 AM
. . .
Monday, July 21, 2003
A little recall amusement Don't miss this California Insider post on what happens when the California Assembly Democrats discussing the recall and the budget left the intercom on.


posted by Rick 9:59 PM
. . .
Follow up on Woocher nomination issue Following up on earlier post, veteran California political commentator Tony Quinn wrote to me with the following observations:
    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.


posted by Rick 9:55 PM
. . .
Anti-recall group goes to appeals court seeking TRO A.P. offers this report.

posted by Rick 5:02 PM
. . .
Plaintiffs oppose McCain lawyers' request to file 100 page brief rather than 75 page brief Among the reasons plaintiffs offer: "And while it is true that seven amicus briefs were filed in support of plaintiffs...it is undoubtedly also true that intervenor defendants will round up at least as many, if not more, amicus briefs in support of their position. Given the large number of interest groups dedicated solely to the 'cause' of campaign finance reform, we suspect this will not be a difficult task."


posted by Rick 4:57 PM
. . .
"Fla. Election Officials Push for Fine" A. P. offers this report.


posted by Rick 4:38 PM
. . .
"The wealth primary" USA Today offers this editorial.


posted by Rick 9:31 AM
. . .
State-by-state analysis of Bush fundraising The Reform Voter Project offers this report.


posted by Rick 9:28 AM
. . .
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?


posted by Rick 6:39 AM
. . .
"Blanket-primary concept revived: The plan would let voters cross party lines. Courts killed an earlier version" See this Sacramento Bee report. (Disclosure: I have been advising the drafters of this measure.)


posted by Rick 6:20 AM
. . .
Sunday, July 20, 2003
Green candidate for president in 2004? See this Washington Post article.


posted by Rick 9:07 PM
. . .
"Bush Loyalists Jockeying Against Each Other to Raise Money" The New York Times offers this report.

posted by Rick 9:06 PM
. . .
More recall news and commentary See stories here, here, here, here, here, here, and here.


posted by Rick 7:57 PM
. . .
More on judicial selection in Brooklyn See this New York Times report.


posted by Rick 7:53 PM
. . .
"U.S. Expands Overseas Online Voting Experiment" The Washington Post offers this report.


posted by Rick 7:51 PM
. . .
Saturday, July 19, 2003
Recall directive from California Secretary of State puts verification on fast track An urgent directive from the Secretary of State's office reads in pertinent part: "Yesterday the 3rd District Court of Appeal directed our office to instruct county election officials to verify all the signatures you have received as of July 16, 2003, and to report these to our office no later than the close of business on July 23, 2003. " Read the whole thing here (via California Insider). UPDATE: A.P. now offers this report.


posted by Rick 4:53 PM
. . .
"Recall Foes Get Double Setback"See this report in the Los Angeles Times. See also "Two courts rule for recall effort" in the Contra Costa Times; "Recall Effort Gets a Boost" in the Sacramento Bee (the Bee also has this report on Green Party candidate Peter Camejo's decision to run in the recall election); "Bustamante May Be Next Governor" in the Fresno Bee; and "Election Official: County Lacks Funds for Recall in the Ventura County Star.


posted by Rick 6:51 AM
. . .
Friday, July 18, 2003
California Secretary of State sets up web page with recall information This site is a welcome development for those of us following the recall closely.


posted by Rick 9:04 PM
. . .
"McCain-Feingold Plaintiffs Squabble Over Argument Time" Law.com's Legal Times offers this report.


posted by Rick 8:30 PM
. . .
"Veto of Felon Voting Protested in Alabama" See this A.P. report.


posted by Rick 8:05 PM
. . .
"California Court Rules for Davis Recall Proponents" A.P. offers this report. See also this Scripps news service report.


posted by Rick 8:01 PM
. . .
"California fray offering G.O.P. Hope and Peril" The New York Times offers this report.


posted by Rick 7:55 PM
. . .
TRO denied in L.A. recall case? A reporter told me that the anti-recall forces who brought the suit challenging the qualifications of the petition circulators were today denied a request for a temporary restraining order to stop the counting pending the August 8 hearing on their preliminary injunction request. Not a surprise, assuming the story is accurate.


posted by Rick 5:19 PM
. . .
"Enron hit with bill for Jersey donations" The Star-Ledger offers this report. (Thanks to Ed Feigenbaum for the pointer.)


posted by Rick 4:51 PM
. . .
More BCRA filings The parties are filing additional papers arguing about oral argument. Also, the McCain attorneys want an increase in their page limits from 75 to 100 pages.


posted by Rick 4:34 PM
. . .
Appellate court order in recall matter The alternative writ is available here. It calls for a further hearing on the matter but that might be mooted by the speed by which counties are verifying signatures, as Dan Weintraub notes here (be sure to read his prior post as well on the "Commission on the Governorship").

posted by Rick 4:33 PM
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Constitutional drafting history of "if appropriate" First lawyers turn into policy experts. Now journalists turn into legal analysts. See Dan Weintraub's careful and very interesting account of the "if appropriate" drafting history here.

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.


posted by Rick 1:21 PM
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"Early Vote on Recall Possible in 90 Days" The Contra Costa Times offers this report.


posted by Rick 9:59 AM
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More on the recall and the "if appropriate" language In the post two below this one, I linked to Dan Walters' column about a new argument being made that would allow only the Lt. Governor to succeed Gray Davis if Davis loses the recall election. I've looked into this a bit more and I'm more skeptical. Thus far, I have found no caselaw or law review commentary discussing the language.

Here's the relevant provision, part of
Article II of the California Constitution:
    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.


posted by Rick 9:49 AM
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"Ohio Election Commission Asked To Disclose Resnick Ad Campaign Contributors" A.P. offers this report. (Thanks to Ed Feigenbaum for the pointer.)


posted by Rick 9:18 AM
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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.


posted by Rick 7:01 AM
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"Democrats Question Fundraising By Appeals Court Nominee" See this New York Times report. See also this Washington Post report. UPDATE: Ed Still has more in depth analysis here.


posted by Rick 6:46 AM
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"Ruling in Arizona could set precedent, bring fines for Issa's funding of recall; But candidate's lawyer, supporters say he won't see penalties" The San Francisco Chronicle offers this report. For more on the Rep. Flake aspect, see this Arizona Republic report.


posted by Rick 6:44 AM
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Thursday, July 17, 2003
"DNC Head Says No. Dem Will Replace Davis" A.P. offers this report.

posted by Rick 8:31 PM
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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.


posted by Rick 11:04 AM
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Soft money oped Michael Kirkland offers his thoughts here.


posted by Rick 10:50 AM
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"Brooklyn Democrats Lift Veil on Judicial Selection" The New York Times offers this report.


posted by Rick 7:12 AM
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"G.O.P. Attorneys General Asked for Corporate Contributions" The Washington Post offers this report.

posted by Rick 7:11 AM
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"Opinion: Daniel Weintraub: The Lawsuit to Stop the Recall Will Probably Fail" See this oped. See also here, here, here, here, and here for other recall news.


posted by Rick 7:03 AM
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"Senate Primary to Test a Key Part of McCain-Feingold See this Chicago Sun-Times report.


posted by Rick 6:55 AM
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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.


posted by Rick 6:48 AM
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