Posted 1:38 PM by Robert

Davis Descending XVII: Cruz Bustamante Takes Some Caminos Estranos

The Los Angeles Times reports today:

County election officers have confirmed more than 1.1 million valid signatures on the petition for an election on whether to recall Gov. Gray Davis — well above the threshold to qualify for the ballot, a Los Angeles Times survey found on Tuesday. The tally makes a recall vote in late September or early October all but inevitable. But in an interview Tuesday, Lt. Gov. Cruz Bustamante raised doubts about the widespread assumption that Californians would simultaneously vote on recalling Davis and on choosing a potential successor. ....

For years, local recall elections in California have offered voters a two-part ballot. The first part asks whether the elected official should be recalled. The second lists possible replacements. .... 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. ....

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. ....

Fred Woocher, a Santa Monica lawyer who specializes in election law, questioned whether the Commission on the Governorship would play a role in the Davis recall attempt. The commission, he said, appeared designed to address confusing questions of vacancy, such as might occur if a governor were disabled but refused to relinquish authority. In this case, he said, no such confusion exists. The constitutional discretion to call for an election of a successor "if appropriate" would most likely apply to appointed judges recalled by popular vote, but not to governors, Woocher said, adding that it was "far-fetched" to argue otherwise.

The Fox News report on the same issue notes: Some say that gives Lt. Gov. Cruz Bustamante wiggle room to decide that if Davis is ousted, a replacement vote is not appropriate and he could keep the job for himself. "Why should it be any different if the governor is recalled than if the governor were to become president or were to become ill or for some other reason couldn't serve?" said political consultant Susan Estrich.

Frankly, it is amazing that anyone is taking the "no election of a substitute" position of Susan Estrich seriously. There is zero chance the California Supreme Court will accept such a construction of the recall provision. Her construction violates the "more voter choice" principle that transfixes modern state courts (as in the Torricelli matter). The recall provision in question is very much like other California recall provisions, all of which provide for an election to choose a replacement and have always been construed that way - and the recall provision in this case carries no indication that it was intended to be radically different from the others. Moreover, the plain meaning of the constitution's language does not easily square with a construction such as Ms. Estrich's, which assumes that people in their right minds intended to pack a huge wallop into the almost paranthetical "if appropriate" while simultaneously giving the Lieutenant Governor the job of scheduling the election and deciding whether to have one or assuming the office of the governorship himself. Simply put: Every time Ms. Estrich opens her mouth it is less surprising that Michael Dukakis was never elected president.

It is also amazing because Mr. Bustamante has not said that he is entertaining a construction of the recall provision under which no election for a substitute would be called - only a construction under which no election for a substitute would be called on the same day. In other words, there might be two election days: one for the recall and one to choose the substitute, if appropriate.

One point not mentioned in the Los Angeles Times or other coverage is that not putting both the questions of the Governor's recall and the choice of his successor to a vote on the same day would hurt Mr. Davis but probably help the Democrats hold the governorship if a Democrat (such as Mr. Bustamante) is on the second ballot as a possible substitute for Mr. Davis. Putting the question of Mr. Davis' recall on the ballot alone would focus the voters on the "Davis-yes-or-no" question, which is bad for the Governor because he is so unpopular and needs to demonize his potential replacements to survive - so he wants voters to link the two choices in their minds and voting pattern.

But putting the question of Mr. Davis' recall on the ballot alone would probably reduce a nasty problem for the Democrats: a small but significant percentage of voters (some say about 10%) who vote to retain an incumbent in a recall election do not vote for any substitute. That means that if the two questions are put to a vote on the same day, a small but significant percentage of voters voting to retain Mr. Davis as Governor will not vote for any replacement - thereby increasing the chances that a non-Democrat is chosen as his replacement.

So Mr. Bustamante has a conflict of interest: Does he allign himself with Mr. Davis, or with the Democratic Party and his own political ambitions?

On the other hand, as the Times article points out, the law probably does not allow votes on two separate days. And, in any event, the Democrats have been making a big stink over the costs of the recall - costs which would be almost certainly substantially increased if two days of voting were chosen instead of one.

Of course, no serious person could take those Democratic "cost-of-recall" objections as more than risible make-weight arguments that nevertheless resonate with some gullible voters. Thrift with state money is not one of California Democrats' strong suits.

MORE: Kausfiles has more and links here and here and here and here. Suggestions are made by Daniel Weintraub that Bustamante is making mischief here, at some peril to the state and, I would suggest, at great peril to his own political career.

I don't agree. In fact, I think Mr. Weintraub's take on Cruz Bustamante is probably 180 degrees off. Mr. Bustamante is sending the message that he does not and will not make discretionary decisions regarding Mr. Davis' recall, but will follow the advice of the Secretary of State and the Commission on the Governorship - and, ultimately, the California Supreme Court. If anything, Mr. Bustamante is being overly eager not to cause, or be seen as causing, mischief.

As the Sacramento Bee reported:

The lieutenant governor, however, said he would not call for the election of a Davis successor on the same ballot.

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."

All of what the Lt. Gov.'s spokeswoman says is correct. Most of the rest of the Bee article concerns evidence that Mr. Bustamante is, in fact, planning to run - not that he is planning to occupy the Governorship without a replacement vote.

The relevant consitutional language is:

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.

Mr. Weintraub writes:

Bustamante is suggesting that those words mean there should not be an election for a successor because the constitution already lays out a method for filling a vacancy in the governor’s office, namely promoting the lieutenant governor, Bustamante.

Perhaps Mr. Weintraub has access to other statements of Cruz Bustamante not accessable to me - but I don't see that Mr. Bustamante has suggested any such thing. Yes, there is an abstract possibility that the California Supreme Court would bury its collective head in the sand and adopt an Estrich-like position. But the practical chances of that are zero - as noted above. Mr. Bustamante is not stupid, and he is not banking his political future on a supreme court decision of essentially zero likelihood. It is possible that Mr. Weintraub is being unfair to Mr. Bustamante's intelligence, political acumen and democratic inclinations

But Mr. Bustamante does want two separate elections - and he needs the California Supreme Court to get him to that position. A construction of the "if appropriate" language to mean that a separate replacement election should (or could) be scheduled and held if the governor is recalled is certainly not crazy. Nor would such a construction violate the "more voter choice" principle so sacred to state courts. Moreover, if the California Supreme Court determines that some executive (such as Mr. Bustamante) is charged by the constitution with construing this provision of the constitution, the court might defer to the executive officer's construction if it is reasonable. Nor does a "two elections" construction pack that huge wallop into the nearly paranthetical "if appropriate" or give the Lieutenant Governor inconsistent jobs rife with self dealing. In short: MR. BUSTAMANTE HAS A SHOT.

Once Mr. Davis is no longer Governor (if that happens in a stand-alone recall vote), then Mr. Bustamante can place his name on the replacement ballot without fear of being accused of having "run against" or "underrmined" Mr. Davis while he was governor. That would be all the more true if the State Supreme Court structures the election(s). It looks like Mr. Bustamante is trying to find a way to make that kind of thing happen - not some way to abort a replacement election as Ms. Estrich and the like are thinking.