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.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
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rick.hasen@lls.edu
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