recall analysis/news of the day 10/3/03

Subject: recall analysis/news of the day 10/3/03

From: Rick Hasen

Date: 10/3/2003, 7:43 AM

To: election-law

The Futuility of a Bustamante Withdrawal?

In this Wednesday post, I stated that it might be rational for Democrats to encourage Bustamante to leave the race (though I offered some counterarguments to that position). Some Democrats have now started encouraging Bustamante to do just that. (See here.) If today's Field Poll is to be believed, such a move may not be enough help Davis:

To test this hypothesis, this question was included in the current survey: Suppose Governor Davis had been allowed to run as a candidate in the replacement election and that Lt. Governor Bustamante had not run. If all other candidates were the same, who would you have voted for?”

In the final polling period Schwarzenegger led Davis 36% to 30% in this situation. In the early September 25-28 polling period Davis appeared to have a slim lead over the actor (33% to 30%) in this hypothetical scenario.

Given these numbers, it is hard to see how the Bustamante withdrawal favoring Davis, where the logic is that once voters clearly see it is a choice between Davis and Schwarzenegger, they will choose Davis. (Link to Field Poll via Dan Weintraub.)

"Succession appeal denied"

The Sacramento Bee offers this report, which begins: "In a brief decision issued Thursday, the 9th U.S. Circuit Court of Appeals turned down an argument that only Lt. Gov. Cruz Bustamante can succeed Gov. Gray Davis if the governor is recalled." The article notes that the same three-judge panel that decided the earlier punch card suit decided this suit. (Note that this panel is one of two panels set up by the court to hear emergency motions during the month of September.)
I know nothing about who brought this litigation, and I have not seen this opinion. If anyone has information on this case, please let me know.

"FPPC Urged to Act on Bustamante"

The Sacramento Bee offers this report.

"Judge OKs Schwarzenegger's Use of $4.5-Million Loan"

The Los Angeles Times offers this report.

"Silent PACS Boost GOP Coffers"

The Lawrence (Kansas) Journal-World offers this report.

More on Do Not Call Registry

UPDATE: Eugene Volokh responds via e-mail:

I think that if the government had a blanket prohibition on unsolicited calls, for political or other reasons, to anyone who has opted out (perhaps with an exception for people with whom you have a preexisting business or social relationship), this would be permissible. See Rowan v. Post Office Dep't (upholding a law that let householders block future mail from particular senders); Martin v. City of Struthers (acknowledging that householders could put up "Do Not Soliciting" signs, even as to political solicitors, that the city could then enforce). UPDATE II Eugene has posted more extensive comments here.

-- 
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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