Mark's argument, as I understand it, is that the state has a reasonable/significant/compelling interest in having a recall election in October because, if it turns out to be the will of the voters to remove the governor for (what they perceive to be) misfeasance, then it will necessarily have been the case that time was of the essence, because the voters would not ordinarily make such a dramatic and unusual choice unless they strongly believed that the situation was dire. There are at least two principal problems with this argument, as I see it. The first is the obvious one -- which is that we don't yet know whether the condition precedent for establishing this state interest will be satisfied: In Mark's own words, "If this is an appropriate case for recall -- which is up to the voters to decide - then delay compounds the harm." In other words, we don't yet know whether the voters (i.e., the State) will agree with Mark that it is imperative that Davis be removed. The more fundamental objection, I think, is that the State of California itself, speaking through its Constitution, apparently thinks otherwise, i.e., that time is not of the essence. The California Constitution permits a recall election as many as six months after the certification of the ballot initiative -- which is, of course, many more months after most of the initiative signatures were collected. If the signatures here had been submitted to the Secretary of State six weeks later thanthey were (as I believe the law allowed), and had the Secretary not certified the signatures until six weeks after he did, then the recall election would have been in March, anyway. This was, in fact, the reasoning of the Ninth Circuit in response to an argument such as Mark's (see excerpt below). The state burden, as I see it, is to explain why a seven-and-a-half month delay is so much more harmful than the six-month delay prescribed by the State Constitution as to justify treating tens of thousands of voters in certain counties less favorably than voters in other counties, in the sense that the voters in the punch-card counties are much more likely to have their votes ignored than voters in other counties. (The constitutional harm, by the way, is not (as Mark writes) "the chance that the errors caused by punch cards will affect the outcome" -- it is, instead, that the State will be arbitrarily, knowingly and concededly ensuring that the voters of certain counties are much more likely not to have their votes tallied than are the voters in the remainder of the counties.) Excerpt from CTA9 opinion at page 32: The only potential justification is that the California Constitution requires that a recall election be held within sixty days of certification by the Secretary of State. However, this justification has no application to placement of the initiatives on the ballot because there is no similar time constraint applicable to them, and they were originally scheduled to be placed on the March 2004 ballot. As to the gubernatorial recall vote, this rationale is also weak. Indeed, had the recall petition been certified just a month and a half later than it was, the recall election would have been scheduled to take place not within sixty to eighty days as provided in the California Constitution, art. II, §15(a), but instead in March 2004 under the California Constitution, art. II, § 15(b). That exception provides for the efficient consolidation of a recall election with an upcoming regularly scheduled election: "A recall election may be conducted within 180 days from the date of certification . . . in order that the election may be consolidated with the next regularly scheduled election . . . ." The operation of this exception produces arbitrary results; because the signatures were certified seven and a half — instead of six — months in advance of the March 2004 election, this exception does not apply, and the deadline falls in early October. In essence, granting a preliminary injunction would put the election only one and a half months after the longer six-month time period provided for by the California Constitution.
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