Posted 11:11 AM by Robert

Davis Descending VI: Deference To A Partisan

Both Kausfiles and Hasen link to Weintraub's scoop regarding the California secretary of state's apparent plan to delay the verification of signatures in the recall process, to push the process to the March date preferred by Democrats.

This scoop points out yet another problem with the just-read-the-statutory-language-and-accept-its-meaning approach to construing the California recall statue: in construing the meaning of statutes, most courts like to defer to executive officials in charge of enforcing that statute (the link is to an article describing the development of federal "deference" law, but the principles and tendencies are similar for state courts, too). In the case of the California recall statute, that executive officer is the California Secretary of State - and he happens to be a partisan Democrat. So what? Is it a surprise to anyone that a directly elected state official is partisan? Does anyone think that would come as a surprise to the drafters of the California constitution or its administrative statutes? The check on that tendency is through the ballot box - when voters again elect the Secretary of State. California was not intended to be a Platonic Republic - partisanship is just part of the normal mix.

If the California Secretary of State assigns a meaning to the statute, those who disagree with her will have to do far more than argue that her construction is wrong. One way or the other, such opponents will find themselves compelled to argue that the courts should not defer to the Secretary - and that generally means arguing that she is being "unreasonable." The California recall statute is not well drafted and courts construing election statutes - especially badly drafted ones - do not like to construe them to limit the voters’ choice.

So, if the California Secretary of State assigns a meaning to the recall statute that permits new names (that is, new Democratic names, such as Bustamante) to be added to the alternatives/replacement list in the event of an unexpected post-deadline resignation by Gray Davis, it is unlikely that the courts will disagree - even a mostly-Republican-appointed state supreme court.

However, the more unreasonable and obstructionist her actions become, such as adopting overly-burdensome counting procedures to deprive the voters of the choice to recall the Governor, the more the two principles of deference and voter choice will come into conflict. That's why a court challenge to her current counting scheme is a better bet than any challenge to a hypothetical more post-deadline alternative/replacement names construction.

Also, I believe the prospect of a challenge to the counting scheme bogging down in extensive court delay is exaggerated - unless the state supreme court wants it that way. The California supreme court has extensive power to remove and directly review cases - vastly more so than the United States Supreme Court. (For example, for those who value technical leglisms, California "mandamus" authority is far broader than federal "mandamus" authority.) If the California state supreme court views this as an important case, they can rapidly clear the way. If the state supreme court does not view the matter as important - then there's little point to a substantive challenge to the Secretary of State's construction of the statute in any event.