The Recall and a Davis resignation Robert Novak incorrectly writes here that Governor Gray Davis "could derail the recall at any time prior to the actual balloting by just quitting." Daniel Weintraub of the Sacramento Bee corrects this error on his blog (links to both via Mickey Kaus): "The state elections code says the election goes forward if Davis quits after the petitions have been filed. It's not entirely clear what 'filed' means, but I think it means when a sufficient number to trigger the election have been filed. It could even be sooner. It is most definitely not the date of the election itself."

Weintraub appears to have it absolutely right. Elections Code section 11302 states that "If a vacany occurs in an office after a recall petition is filed against the vacating officer, the recall election shall nevertheless proceed." The section also provides that the vacancy is filled under usual succession rules (meaning the Lt. Governor becomes governor), but only until the winner of the recall election is declared qualified.

So when is a recall petition "filed" pursuant to 11302? There is no relevant caselaw that I could find. Section 11101 provides that "each section of a recall petition shall be filed with the elections official of the county in which it was circulated." A section is simply a page (or set of pages) from the recall petition with signatures on it. There is no single "filing." These sections are then counted by the election officials, with results sent to the secretary of state. when there are enough signatures, the Secretary of States certifies that there are enough signatures. 11102. Some petition sections have already been filed. So at the earliest, it is too late now for Davis to resign to prevent triggering a recall election. At the latest, once (if) the Secretary of State certifies, it should be too late for Davis to prevent the election from going forward. Not that anyone thinks Davis would actually resign before certification, but yet another gap in the recall statutes. (For more gaps, see here.)

"Next for CFR Backers: Fixing the Presidential Campaign System" Norman Ornstein writes this oped in Roll Call (registration required).

Recall news The Washington Post offers "California Recall Bid Organizers Cite Gains; Effort Still Short of Needed Signatures". The New York Times offers "California Digs In, Not Out, of a Crisis." For a little anti-recall humor, click here (need audio; give it time to load).
UDDATE: The Los Angeles Times offers "Recall Drive at 40% of 1st Goal," which explains more clearly than the New York Times article how the deadline for turning in petitions works with the date of the potential election. You can also find "Republicans mixed on Davis Recall."

"N.Y. OKs Winner-take-All GOP Primary" A.P. offers this report.

-- 
Professor Rick Hasen
Loyola Law School
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