Opponents File Challenge to Davis Recall Petitions

Wednesday, July 16, 2003

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Opponents File Challenge to Davis Recall Petitions

From Staff and Wire Service Reports

Opponents of the effort to recall Gov. Gray Davis filed suit in Los Angeles Superior Court yesterday seeking to block verification of petition signatures until the qualifications of circulators have been checked.

The complaint seeks certification of a class action on behalf of all California taxpayers and voters and names Secretary of State Kevin Shelley, Los Angeles County Registrar of Voters Conny McCormack, and registrars in Orange and San Diego counties as defendants.

The suit claims that petitions were circulated by hired signature-gathering professionals from outside the state, many of whom were not registered California voters as required by Elections Code Secs. 102, 11045 and 11046. Other circulators fraudulently registered to vote in California, the complaint alleges.

Though petitions require certification, under penalty of perjury, that the circulators witnessed the signatures, the certifications were often “pre-signed” and many petitions were left unattended at supermarkets, drug stores, government offices and other businesses for signature, the lawsuit asserts. The complaint contains four pages of photographs of purportedly unattended or pre-signed petitions.

Declarations from alleged circulators admitting they were not California residents and in some cases were convicted felons, were attached to the complaint. Attorneys Raymond P. Boucher, Paul R. Kiesel, and Patrick DeBlase of Kiesel, Boucher & Larson in Beverly Hills and Wylie Aitken of Aitken Aitken & Cohn in Santa Ana filed the action on behalf of Taxpayers Against the Governor’s Recall.

Officials with Rescue California, one of the groups leading the recall campaign, called the lawsuit “laughable.”

“Anyone with a camera” could have set up the photos,” said Monica Getz of Rescue California. “Those are lawyers up there. I wouldn’t trust them as far as I could throw them, and what they say is bordering on slanderous.”

“Gray Davis can’t explain or defend his record, so he’s resorting to a clearly cynical and frivolous lawsuit to try to slow us down,” said David Gillard, Rescue California’s director.

Chris Wysocki of Rescue California said signature-gatherers were not paid unless they were registered voters.

Rescue California said Monday that it has turned in more than 1.6 million signatures on recall petitions to county officials across the state. Getting the recall on the ballot requires 897,158 valid signatures.

The plaintiffs seek an injunction ordering Shelley to give instructions to county clerks to ensure that people circulating petitions did so legally. The plaintiffs also want names of the signature gatherers.

Aitken told the METNEWS the plaintiffs’ lawyers expect to appear today for an ex parte hearing before Los Angeles Superior Court Judge Charles W. McCoy in the Central Civil West courthouse. He said the case was filed in Los Angeles partly because the court has a complex litigation panel, to which he expects it to be assigned.

Aitken said the plaintiffs will seek a hearing before July 23, when the next step in the verification process is to take place. He said the two firms are handling the case pro bono.

He said the guidelines for county registrars issued by Shelley do not include any provisions for excluding petitions whose circulators falsely verified them.

“Case law has said the purpose of the statutes regulating circulators is to protect the integrity of system and prevent forgery,” Aitken said. The complaint cites Dodge v. Free (1973) 32 Cal.App.3d 436, a case in which the court called circulator declarations “a safeguard against the possible forgery of signatures.”

But USC Law School Professor Elizabeth Garrett told the METNEWS that the U.S. Supreme Court in Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182 held requiring circulators to be registered voters is an unconstitutional restriction on free speech. A closer question, she said, would be whether they could be required to be eligible to vote.

“Technically,” Garrett said, the statute “requires only eligibility,” which she characterized as a “much less stringent test” which would involve residency in California. An eligibility test “might be constitutional,” the professor opined.

Garrett also said she would be surprised if a court would invalidate petitions as a remedy for violations by circulators. “Do you throw out the petitions and deny the voters their voice, or do you just punish the circulators?” she asked.

Analysts cite a number of reasons for discontent with the Davis administration, including a record $38.5 billion budget deficit and the electricity crisis and its contractual aftermath.

Davis partisans claim the recall effort is basically an expensive, ill-timed attempt by multimillionaire Rep. Darrell Issa, R-Vista, and Republicans to undo the outcome of the last governor’s race.

A recent Field Poll showed 23 percent of Californians approve of the way Davis is doing his job, compared with a 19 percent favorability rating for the Legislature, which is at a Republican-Democratic stalemate over resolving the budget crisis.

Even Davis supporters concede that a recall election looks nearly inevitable. But legal battles could delay it from this fall to March, when heavy Democratic turnout for the state’s presidential primary could help Davis.