Fascinating new argument that only the Lt. Gov. may succeed Gray Davis if Davis loses the recall election Dan Walters of the Sacramento Bee offers this column. The argument is as follows: California statutes provide for a two part recall ballot, with part 1 about the recall of Davis and part 2 to choose Davis's successor contingent on a 50% +1 vote in part 1. The California Constitution says that lieutenant governor to call an election, and defines his function this way: "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." (Emphasis added, and in the case of the recall of a governor, the lt. governor calls the election). Another provision of the Constitution provides that the Lt. Governor succeeds the governor if there is a vacancy. Thus, the argument is that the California statute violates the California Constitution, and if Davis is recalled, the Lt. Governor automatically becomes governor.

Very provocative theory. I have not done any research into this Clause of the California constitution. What did the drafters have in mind with the term "if appropriate"? Might they have been referring to judicial recalls, where the governor would appoint a replacement (California's judges generally begin their posts with a judicial appointment and stand for periodic retention elections)? Unlike the current anti-recall lawsuit, this one has some real potential, depending upon what research about the California constitution shows.

"Democrats Question Fundraising By Appeals Court Nominee" See this New York Times report. See also this Washington Post report.

"Ruling in Arizona could set precedent, bring fines for Issa's funding of recall; But candidate's lawyer, supporters say he won't see penalties" The San Francisco Chronicle offers this report. For more on the Rep. Flake aspect, see this Arizona Republic report.

"DNC Head Says No. Dem Will Replace Davis" A.P. offers this report.

The bounds of election law commentary See this post by Dan Weintraub. I don't know the lawyer who is involved, but I think Dan is coming down too hard on having a lawyer offer "expert opinion" on things like how the recall law is structured (e.g., a single ballot to remove the official and choose a successor). Lawyers certainly may have opinions on policy (as opposed to law) which may be no more expert than anyone else's, but because they tend to read the details of laws, and understand how law effectuates policy and interacts with legal constraints such as constitutional requirements, lawyers' opinions on policy tend to be valuable for a lay audience.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com