I think it is safe to say that the good question posed by Mike
Alvarez and the good answer by Scott Lay (namely, the law is utterly
ambiguous) is representative of dozens of problems that will arise if the
recall election is merged with the March primary. That I think is one more
reason why the Ninth Circuit panel's decision is very harmful for the state.
To be sure, the recall statutes are deficient in a number of ways,
and there were a variety of legal questions that arose and were fruitfully
discussed on this listserv last summer. Fortunately, those questions proved
either to have fairly clear answers (e.g., the question of whether the
Lieutenant Governor would replace the Governor) or to lack major political
salience.
The questions that will arise if the recall is merged with the
primary will be of a different order. Obviously, there are no statutes
dealing with the situation of a recall election called for a given date,
called off three weeks in advance, and then conducted at the time of a
statewide primary. Most of the questions that arise will have no good
answers or, at best, a statute whose wording covers the situation but was
not written with the situation in mind. Not all of the questions will be
politically salient, but some probably will be.
One of the major lessons of Florida is that it is much better to
have clear rules laid out in advance. The rules may not be ideal, but they
are adopted at a time when no one knows how they will cut in a particular
controversy. When the rules are unclear and the questions arise at a time
when it is known how different candidacies will be affected, no one's good
faith can be assumed. The Ninth Circuit panel's decision, if it stands,
puts us down that road that we last traversed three years ago.
ΚΚΚΚΚΚΚΚΚΚΚ Best,
ΚΚΚΚΚΚΚΚΚΚΚ Daniel Lowenstein
ΚΚΚΚΚΚΚΚΚΚΚ UCLA Law School
ΚΚΚΚΚΚΚΚΚΚΚ 405 Hilgard
ΚΚΚΚΚΚΚΚΚΚΚ Los Angeles, California 90095-1476
ΚΚΚΚΚΚΚΚΚΚΚ 310-825-5148
-----Original Message-----
From: Scott Lay [mailto:scottlay@davis.com]
Sent: Thursday, September 18, 2003 3:38 PM
To: 'Mike Alvarez'; election-law@majordomo.lls.edu
Subject: RE: Ballot order if recall is in March
That's a good hypothetical question. It appears that it would be determined
by whether the election is an election for the office of the Governor or a
measure submitted to the voters under subdivision (n). If it is considered
a measure, county election offices could separate it onto a different ballot
(or otherwise vary the order), per subdivision (o)
Scott
Elections Code
13109. The order of precedence of offices on the ballot shall be as listed
below for those offices and measures that apply to the election for which
this ballot is provided. Beginning in the column to the left:
(a) Under the heading, PRESIDENT AND VICE PRESIDENT:
Nominees of the qualified political parties and independent nominees for
President and Vice President.
(b) Under the heading, PRESIDENT OF THE UNITED STATES:
(1) Names of the presidential candidates to whom the delegates are
pledged.
(2) Names of the chairpersons of unpledged delegations.
(c) Under the heading, STATE:
(1) Governor.
(2) Lieutenant Governor.
(3) Secretary of State.
(4) Controller.
(5) Treasurer.
(6) Attorney General.
(7) Insurance Commissioner.
(8) Member, State Board of Equalization.
(d) Under the heading, UNITED STATES SENATOR:
Candidates or nominees to the United States Senate.
(e) Under the heading, UNITED STATES REPRESENTATIVE:
Candidates or nominees to the House of Representatives of the United
States.
(f) Under the heading, STATE SENATOR:
Candidates or nominees to the State Senate.
(g) Under the heading, MEMBER OF THE STATE ASSEMBLY:
Candidates or nominees to the Assembly.
(h) Under the heading, COUNTY COMMITTEE:
Members of the County Central Committee.
(i) Under the heading, JUDICIAL:
(1) Chief Justice of California.
(2) Associate Justice of the Supreme Court.
(3) Presiding Justice, Court of Appeal.
(4) Associate Justice, Court of Appeal.
(5) Judge of the Superior Court.
(6) Marshal.
(j) Under the heading, SCHOOL:
(1) Superintendent of Public Instruction.
(2) County Superintendent of Schools.
(3) County Board of Education Members.
(4) College District Governing Board Members.
(5) Unified District Governing Board Members.
(6) High School District Governing Board Members.
(7) Elementary District Governing Board Members.
(k) Under the heading, COUNTY:
(1) County Supervisor.
(2) Other offices in alphabetical order by the title of the office.
(l) Under the heading, CITY:
(1) Mayor.
(2) Member, City Council.
(3) Other offices in alphabetical order by the title of the office.
(m) Under the heading, DISTRICT:
Directors or trustees for each district in alphabetical order according
to the name of the district.
(n) Under the heading, MEASURES SUBMITTED TO THE VOTERS and the
appropriate heading from subdivisions (a) through (m), above, ballot
measures in the order, state through district shown above, and within each
jurisdiction, in the order prescribed by the official certifying them for
the ballot.
(o) In order to allow for the most efficient use of space on the ballot
in counties that use a voting system, as defined in Section 362, the county
elections official may vary the order of subdivisions (j), (k), (l), (m),
and (n) as well as the order of offices within these subdivisions. However,
the office of Superintendent of Public Instruction shall always precede any
school, county, or city office, and state measures shall always precede
local measures.
---
Scott Lay
Director, State Budget Issues
Community College League of California
scottlay@ccleague.org - 916.441.0353
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Mike Alvarez
Sent: Thursday, September 18, 2003 1:44 PM
To: election-law@majordomo.lls.edu
Subject: Ballot order if recall is in March
Sorry to keep posing hypothetical questions, but I'm
curious about where the gubernatorial recall would fall
on the ballot were the recall election postponed until
March. Would it come first? Would it come after the presidential? Would
it come after all the candidate races? Would it be on a separate ballot? Is
this something that could vary across counties (as some elections officials
have announced they might need to use two separate ballots if the recall
were postponed to March)?
*********************************************************************
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
*********************************************************************