I have to admit that I found this article from this morning's LA Times
odd and bizarre. Bustamante seems to have not consulted S 11320
and 11322 of the California election code ("Division 11; Chapter 4;
General Provisions: Final Steps in the Recall; Ballots"):
11320: The following shall appear on the ballots at every
recall election, except in the case of a landowner voting district,
with respect to each officer sought to be recalled:
(a) The question "Shall (name of officer sought to be recalled)
be recalled (removed) from the office of (title of office?)"
(b) To the right of the foregoing question, the words "Yes" and
"No" on separate lines with an enclosed voting space to the right
of each.
11322: In addition to the material contained in Section 11320, the
following shall appear on ballots at all recall electoins, except
at a landowner voting district recall election:
(a) The names of the candidates nominated to succeed the officer
sought to be recalled shall appear under each recall question.
(b) Following each list of candidates, the ballot shall provide
one blank line with a voting space to the right of it for the voter
to write in a name not printed on the ballot.
I do not see any ambiguity here, and am very confused by what was
reported in this article. I do not see any way in which there
could be separate ballots or elections, given what looks like very
clear guidelines in the state election code.
BTW, for those following the minute details of voting systems in
California, it seems that LA County will bring their "VotoMatic"
punchcard machines out of retirement for a fall special recall
election (if and when it happens); some of your might recall that
LA County officially "retired" VotoMatic on June 3, 2003 at a
retirement party. :-) One very interesting question will be, if
there is a long list of candidates, how this will all be laid out
for the punchcard ballot.
*********************************************************************
R. Michael Alvarez (O) 626-395-4422
Professor of Political Science (F) 626-405-9841
Co-Director, Caltech/MIT Voting Technology Project
California Institute of Technology
Pasadena, CA 91125
rma@hss.caltech.edu
*********************************************************************
On Wed, 23 Jul 2003, Rick Hasen wrote:
Big news: Bustamante appears to take the position that the
recall election need not include any replacement candidates.
Here is an excerpt from the Los Angeles Times report:
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.
State law empowers the commission to "petition the Supreme
Court to determine any questions that arise relating to
vacancies in and succession to the office of Governor."
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.
Burton, a San Francisco Democrat, said he was checking on
his role as chairman, but he cast doubt on whether the panel
was relevant to the recall. Burton said it was clear to him
that the election of a successor would be on the ballot with
the recall.
The law that sets up the commission is one of many under
intense scrutiny by California officials and election
lawyers.
Here is a similar Sacramento Bee story:
Facing the biggest decision of his career, Lt. Gov. Cruz
Bustamante said Tuesday he will likely take no more than 24
hours from the day the choice is his to set the date for the
recall election of Gov. Gray Davis.
But he said he will leave to an independent commission and
the California Supreme Court a decision on whether he
becomes governor himself -- without an election to determine
a successor -- if Davis is recalled....
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."
The commission has exclusive authority to petition the
Supreme Court regarding succession to the office of
governor, Pacyna said. The panel's chairman would be Senate
President John Burton. The other members would be Assembly
Speaker Herb Wesson, the University of California president,
the California State University chancellor, and the
governor's director of finance.
The involvement of the commission and the state's highest
court raises the prospect of added confusion about the final
composition of the recall ballot.
The law that sets up the commission is one of many under
intense scrutiny by California officials and election
lawyers.
Dan Weintraub of the Bee calls this move by Bustamante
"stunning." After explaining why he disagrees with
Bustamante's interpretation of the Constitution (see my
earlier posts on that here and here), Weintraub concludes:
"Bustamante is making mischief here, at some peril to the
state and, I would suggest, at great peril to his own
political career."
Although I agree with Weintraub that Bustamante is probably
incorrect on the interpretation of the California
Constitution's "as appropriate" language, I very much like
the idea of getting the California Supreme Court involved
(though not necessarily through the obscure "Committee on
the Governorship"). The California Court can then
definitively reject the "as appropriate" theory, and, more
importantly, determine the criteria for candidates to be
nominated to the ballot (i.e., do the rules for nominations
in direct primaries apply to recall nominations, including
for independent candidates?), a matter of more than a little
controversy since Fred Woocher pressed the point here.
Indeed, if I were Secretary of State Shelley, I would not
wait for Bustamante to act. I would immediately file an
original proceeding in the California Supreme Court seeking
a declaratory judgment on all these issues. By acting
immediately and giving the California Supreme Court a chance
to gear up, the Court can move expeditiously to handle this
matter in a definitive and helpful way. Resort to the Court
seems necessary and inevitable, given the mess of
California's recall scheme. If the California Supreme Court
believes the Committee on the Governship has the exclusive
right to raise these questions, it will deny Shelley's writ
on that basis, giving the Committee a chance to file the
same papers to get clarification.
Finally, we should be careful, whatever happens, not to
blame the courts for this mess (see my earlier argument on
this point here). This is the fault of the drafters of the
California constitution's recall provisions and the
legislators who drafted the California recall statutes.
Recall chaos predicted See "Early Recall Election Sounds
Like Doomsday to Officials" in the San Francisco Chronicle;
"Recall Process Befuddles Officials" in the Contra Costa
Times; and "Recall May Bring Election Chaos" in the San Jose
Mercury News.
Post-McCain-Feingold fundraising See this report in The
Hill.
"FEC to Consider Lifting Ban on Soft Money for Conventions"
The Washington Post offers this report.
Recallmania Is the California electoral system up to the
task of running a recall election in 60-80 days? An official
of the California Secretary of State's office speaking on
background tells Dan Weintraub "no". In other recall news,
tomorrow's New York Times will carry this front page (at
least front web page) article: "Backer of California Recall
Feels Heat Directed at Him." The Hill will have "California
Recall Effort Heads into New Phase." The Christian Science
Monitor offers "First Fight of 2004 Election - California
Recall." The Washington Post offers this report.
Does Susan Estrich buy the "as appropriate" argument? See
this FOXNews report.
"Judge Won't Dismiss Suit Against FEC" A.P. offers this report, which
begins: "A judge rejected the Federal Election Commission's request that
he dismiss a lawsuit filed over its failure to act on a complaint
involving Attorney General John Ashcroft's 2000 Senate campaign."
--
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