"Group is Suing Over Petitions to Recall Gray Davis" The New York Times offers this report. See also this report in the San Francisco Chronicle; FOX40's report; Santa Maria Times report; A.P. report; [more to come].

Thoughts about the lawsuit by the anti-recall forces It appears as though the lawsuit to be filed by recall opponents will focus on problems with the petition circulators---that some are not registered voters as required by statute, that some were convicted felons, etc. I am skeptical that such claims will derail the recall effort (though they may well delay it---and that may be all the the anti-recall folks want right now). There are two reasons why the claims are unlikely to be successful:

(1) Registered voter requirement likely unconstitutional To the extent that anti-recall forces point to state law requiring that circulators be registered voters (see Cal. Elections Code section 105, 11045) , I believe such a law runs afoul of the United States Supreme Court's holding in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 197 (1999). There, the Supreme Court struck down a Colorado Law requiring that circulators be registered voters as a violation of the First Amendment.

California Elections Code section 105 makes it clear that the California legislature made a deliberate choice to keep the registered voter requirement for recall circulators even after changing that requirement to a residency requirement (phrased as "qualified to vote" in the state) for initiative circulators. But despite that deliberate choice, I believe the constitutional argument would be identical: under ACLF and the earlier Meyer v. Grant case, the requirements unconstitutionally burden the First Amendment rights of circulators and voters. I see no reason to think that the Supreme Court would treat recall petitions any different than it has treated initiative petitions.

Here is what the Court in ACLF said in striking down the requirement in the initiative context:

The requirement that circulators be not merely voter eligible, but registered voters, it is scarcely debatable given the uncontested numbers...decreases the pool of potential circulators as certainly as that pool is decreased by the prohibition of payment to circulators. Both provisions "limi[t] the number of voices who will convey [the initiative proponents'] message" and, consequently, cut down "the size of the audience [proponents] can reach." Meyer, 486 U.S., at 422, 423, 108 S.Ct. 1886; see Bernbeck v. Moore, 126 F.3d 1114, 1116 (C.A.8 1997) (quoting Meyer ); see also Meyer, 486 U.S., at 423, 108 S.Ct. 1886 (stating, further, that the challenged restriction reduced the chances that initiative proponents would gather signatures sufficient in number to qualify for the ballot, and thus limited proponents' "ability to make the matter the focus of statewide discussion"). In this case, as in Meyer, the requirement "imposes a burden on political expression that the State has failed to justify."

Colorado acknowledges that the registration requirement limits speech, but not severely, the State asserts, because "it is exceptionally easy to register to vote." The ease with which qualified voters may register to vote, however, does not lift the burden on speech at petition circulation time. Of course there are individuals who fail to register out of ignorance or apathy. But there are also individuals for whom, as the trial record shows, the choice not to register implicates political thought and expression. A lead plaintiff in this case, long active in ballot-initiative support--a party no doubt " 'able and willing' to convey a political message," -- testified that his refusal to register is a "form of ... private and public protest." Another initiative proponent similarly stated that some circulators refuse to register because "they don't believe that the political process is responsive to their needs." For these voter- eligible circulators, the ease of registration misses the point.

The State's dominant justification appears to be its strong interest in policing lawbreakers among petition circulators. Colorado seeks to ensure that circulators will be amenable to the Secretary of State's subpoena power, which in these matters does not extend beyond the State's borders. The interest in reaching law violators, however, is served by the requirement, upheld below, that each circulator submit an affidavit setting out, among several particulars, the "address at which he or she resides, including the street name and number, the city or town, [and] the county." This address attestation, we note, has an immediacy, and corresponding reliability, that a voter's registration may lack. The attestation is made at the time a petition section is submitted; a voter's registration may lack that currency.

ACLF did not challenge Colorado's right to require that all circulators be residents, a requirement that, the Tenth Circuit said, "more precisely achieved" the State's subpoena service objective. Nor was any eligible-to-vote qualification in contest in this lawsuit. Colorado maintains that it is more difficult to determine who is a state resident than it is to determine who is a registered voter. The force of that argument is diminished, however, by the affidavit attesting to residence that each circulator must submit with each petition section.

In sum, assuming that a residence requirement would be upheld as a needful integrity-policing measure--a question we, like the Tenth Circuit, have no occasion to decide because the parties have not placed the matter of residence at issue--the added registration requirement is not warranted. That requirement cuts down the number of message carriers in the ballot-access arena without impelling cause.

(some citations and footnotes omitted)

(2) The California courts won't punish the voters for the sins of the circulators or recall organizers Some circulators likely violated other provisions of state law, even putting aside the registered voter issue. I think Fred Woocher is right when he says here: "While the secretary of state has taken the position that [the lack of circulators' qualifications] does not matter [for the validity of the signatures], that issue has not conclusively been resolved by the courts in this context so it is certainly an appropriate issue to bring forward." But I find it hard to believe that when the courts do conclusively resolve the question, that they would throw out the signatures of voters who signed petitions circulated by unqualified circulators.

I believe the strongest precedent here is Assembly v. Deukmejian, 30 Cal.3d 638 (1982). This case arose out of the attempt to overturn California's legislative reapportionment statutes through a voter referendum. Challengers raised a number of problems with the referendum petitions, including the failure to include the residence addresses of voters as required by state law. The court rejected the series of challenges, noting " 'it has long been our judicial policy to apply a liberal construction to [the] power [of initiative and referendum] wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it. [Citations.]' "

Most applicable here was a challenge based upon the "claim that the use of preprinted dates on the declarations signed by the petition circulators violated the Elections Code requirement that the declarations contain '[t]he dates between which all signatures were obtained." The Court responded to this and two other challenges:

This court has stressed that technical deficiencies in referendum and initiative petitions will not invalidate the petitions if they are in 'substantial compliance' with statutory and constitutional requirements.... A paramount concern in determining whether a petition is valid despite an alleged defect is whether the purpose of the technical requirement is frustrated by the defective form of the petition. 'The requirements of both the Constitution and the statute are intended to and do give information to the electors who are asked to sign ... the petitions. If that be accomplished in any given case, little more can be asked than that a substantial compliance with the law and the Constitution be had, and that such compliance does no violence to a reasonable construction of the technical requirement of the law.' None of the ... errors asserted here has interfered with the statutory purpose behind the technical regulations.

...The range of dates was sufficient to enable the clerks to make the important determination that all of the signatures were obtained within the proper time limits. Further, although the precise dates might have been useful to the clerks in determining the number of qualified voters who had signed the petitions, no showing has been made that the more general information provided prevented the clerks from carrying out that function...(some citations omitted)

Assuming the petitions have correct voter information, it is difficult to see how the unqualified status of the circulators will interfere with the ability of the clerks to make "the important determination" that the signatures of voters are otherwise valid.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
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