Posted 9:39 AM by Robert

Davis Descending V: Construing The Recall Law

Mickey Kaus make a good point that I confess I haven't focused on enough - funny how often that kind of thing happens with Mickey.

I've been assuming that Bustamante would put his name on the ballot if Davis resigns. Mickey correctly point out that there is a cut-off date for that. I think he is likely right that if Davis resigned after the cut off date and Bustamante was not on the ballot, the Republicans (or someone else) could - even as a practical matter - become governor.

But I'm all but convinced that a Davis resignation after such a the cut-off date would be construed to open a new "window" for names to be added to the alternatives list - for the same reasons Mickey describes in his column: It would make no sense to have no window, after a recall petition with enough signatures is "filed," in which candidates to succeed Davis could jump in.

Regardless of the recall statute's technical wording, the policy considerations identified by Kausfiles would likely get translated into a Torricelli-style Supreme Court decision allowing new names (read Bustamante) to be added to the "alternatives/replacements" list even after the nominal cut-off date if the recall election moved forward at all. This result is all but assured exactly because the statute's technical wording is a dog's breakfast - and I don't see the California courts construing a dog's breakfast to deprive the voters of a choice in such unanticipated and weird circumstances.

I notice on Hasen's excellent web site - also now quoted by Daniel Weintraub at the link in Kausfiles):

"Meanwhile, a spokeswoman for the California secretary of state’s office told Roll Call this week that it is unclear whether a scheduled recall election would proceed if Davis resigns before it takes place."

I'm not sure whether as a legislative policy matter it is coherent for the recall to go forward if Davis resigns before the election. So the Sec'y of State may have a point. But Kausfiles points out that at least under this one reasonable construction of the recall law, Robert Novak is wrong to say that David could "derail" the process by resigning right up to election day - and I hadn't given much thought to that.

What Mr. Novak actually wrote was:

Oakland Mayor (and former California governor) Jerry Brown, in Washington this past week, speculated that Davis could instantly destroy the recall movement by resigning. ... [Davis] could derail the recall at any time prior to the actual balloting by just quitting.

What I think Novak (and also Jerry Brown, who is very unlikely to be quoting statute books) means is that once Davis resigned, the steam would go out of the recall movement as a practical political matter because it is powered by distaste for and suspicion of Davis (rightly or wrongly). That is, Novak is saying that the recall would be politically "destroyed" or "derailed" - not that it would be technically legally defeated by a Davis resignation. Mickey correctly points out that there is a serious limit to this line of reasoning.

I think that Novak and former Governor Brown are correct (politically/practically) to suggest that if Davis resigns, the steam goes out of the recall movement, and Bustamante will almost certainly be elected as an "alternative" if he is on the ballot. The public ire and recall publicity is probably just too much focused on Davis personally for it to transfer to Bustamante in such short order.

Of course, as Kausfiles (and Willie Brown!) point out, weird things could happen - such as another senior Democrat entering the race to split the vote with Bustamante. But if the "alternative/replace" race comes down to Bustamante v. [some Republican - even just one] - I think Novak and Brown are correctly implying that Bustamante would survive (that is, lead the votes on the alternative list).

And I think the Republican establishment is afraid of just that possibility - because Bustamante would be worse than Davis in their view.