Metropolitan News-Enterprise


Friday, August 8, 2003


Page 1


Supreme Court Rejects Petitions in All Five Recall Election Cases


By KENNETH OFGANG, Staff Writer/Appellate Courts


Five petitions seeking to postpone California’s historic recall election or alter the composition of the Oct. 7 ballot were rejected yesterday by the California Supreme Court.

The court unanimously rejected a petition by Gov. Gray Davis and others seeking to delay the election until March and to allow the governor to be a candidate to succeed himself, two petitions seeking to knock all replacement candidates off the ballot and allow Lt. Gov. Cruz Bustamante to succeed Davis if the voters remove him from office, and a bid to prevent two ballot measures from being submitted to voters at the same time as the recall.

In a 5-2 decision, the justices upheld Secretary of State Kevin Shelley’s ruling that any candidate meeting the requirements for nomination for governor at a primary—65 signatures and a $3,500 filing fee, or 10,000 signatures without the fee—can run in the recall election.

In a brief order, the justices summarily rejected claims by the governor and supporters that because of the potential use of punch card ballots and consolidation of polling places, voters in some counties will be denied their equal protection right to have their votes count as much as others.

Longstanding Prohibition

The petitioners in Davis v. Shelley, S117921, also argued that the California Constitution’s longstanding prohibition on permitting an officer who is the subject of a recall election from appearing on the ballot to pick a successor violates the equal protection rights of his or her supporters.

They also claimed California’s recall process violates the federal constitutional guarantee of a republican form of government by frustrating majority rule, since the governor could be ousted by only slightly more than 50 percent of those voting, while a successor could be elected with a much smaller percentage of the votes.

The justices denied, without comment, Jon Eisenberg’s claim that Proposition 54, which would restrict the government’s ability to collect racial and ethnic data, and Proposition 55, a legislative constitutional amendment dealing with public finance, should be voted on at the March election and not at the same time as the recall.

The Oakland attorney argued in Eisenberg v. Shelley, S117763, that the recall ballot is not a “special statewide election” and thus cannot contain ballot measures.

A similar challenge, with a different legal basis, is pending before Judge Jeremy Fogel in U.S. District Court in San Jose. The Mexican American Legal Defense and Educational Fund is arguing that the shortened period for the mailing of ballot materials related to the initiatives has not been approved by the Justice Department and thus violates the preclearance requirements of the Voting Rights Act.


MALDEF Vice President Thomas Saenz told the METNEWS yesterday that the state had virtually conceded the plaintiff’s position by asking for preclearance after the lawsuit was filed. In view of yesterday’s ruling, he said, he expects to obtain a temporary restraining order in the next few days.

In Frankel v. Shelley, S117770, and Byrnes v. Bustamante, S117832 the justices unanimously rejected the argument that constitutional language to the effect that voters will elect a successor to a recalled official at the same ballot “if appropriate” means that no successor to the governor would be elected, since under another provision of the Constitution the lieutenant governor fills any vacancy in the office of governor.

The justices agreed with the secretary of state that the “if appropriate” language refers to appellate justices, to whom no successor would be elected at a recall election since they are appointed, not elected, officials. The lieutenant governor would not succeed a recalled governor, they said, because there would be no “vacancy” if a new governor were to be elected. 

In the only case to draw substantial disagreement among the justices, Burton v. Shelley, S117834, a four-justice majority—Justices Marvin Baxter, Kathryn M. Werdegar, Ming Chin, and Janice Rogers Brown—said Shelley did not commit “clear error” by adopting the low threshold for qualifying.

Justice Joyce L. Kennard concurred separately, saying the election should not be postponed after voters had “overwhelmingly” qualified it.

Chief Justice Ronald M. George, who dissented, argued that the potentially lengthy ballot—it was reported yesterday that as many as 500 candidates had taken out papers to run, although only a fraction of them had returned the documents with the filing fee and/or signatures—has created “chaos, confusion, and [a] circus-like atmosphere.”

George said the election should be stayed, and that candidates should be required to obtain at least 74,767 signatures, or one percent of the number of votes cast for governor at the last election, which was the standard prior to a state constitutional amendment that revised recall requirements in the 1970s. There was no clear evidence that the voters intended to relax those requirements when they approved the amendment, which was largely a housecleaning proposal, George argued.

Justice Carlos Moreno joined George’s dissent.


Copyright 2003, Metropolitan News Company