Ninth circuit and the recall

[Marty Lederman]

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.   ----- Original Message ----- From: Scarberry, Mark To: [EMAIL PROTECTED] Sent: Monday, September 15, 2003 6:18 PM Subject: Re: Ninth circuit and the recall Time most certainly is of the essence. Once the recall qualified, Governor Davis decided to sign a bill allowing undocumented immigrants to obtain drivers' licenses, even though the bill contained fewer safeguards than a bill the Governor previously vetoed as threatening security in this time of the "War Against Terror." The legislature has begun to try to pass every bill that they think they can get the Governor to sign, to cement in place what some see as an environment that is terribly hostile to business (and therefore to employment). One of the bills is likely to make it economically infeasible to use part time workers; I wonder what will happen to my ability to hire research assistants when the university has to provide 80% of the cost of their health insurance even if they just work a few hours a week. I also wonder whether my wife, who has chosen to work part time as a nurse, will have a job if the bill is signed by Governor Davis.   Even though Sandy does not like the recall process, it was designed, together with its time limits, to allow the people to get rid of a governor who was harming the state. I'm not a historian, but an argument can be made that Governor Davis is controlled by public employee unions and other interest groups much as the state government in the early part of the 20th Century was controlled by the railroads and other business interests - a situation which gave rise to the progressive reforms, including the recall process. If this is an appropriate case for recall -- which is up to the voters to decide - then delay compounds the harm. The chance that the errors caused by punch cards will affect the outcome is very low (although it is a possibility, as we saw in 2000). Denial to all of the voters of their right to remove a governor is serious, irreparable harm.   I will now retire to read the 9th Circuit opinion before offering any further views, beyond saying that Ed Hartnett's posts are very persuasive, and that if paper ballots have to be used, then so be it. The expense will be minor compared with denial to the people of their right to hold elected officials accountable on a timely basis.   Mark S. Scarberry Pepperdine University School of Law   -----Original Message----- From: Sanford Levinson [mailto:[EMAIL PROTECTED] Sent: Monday, September 15, 2003 11:48 AM To: [EMAIL PROTECTED] Subject: Re: Ninth circuit and the recall   At 01:24 PM 9/15/2003, you wrote: All right, so we ve all heard the news.  Two quick questions, testing the current common wisdom of the list: * Will the SC intervene? *  If so, how will Rehnquist, Scalia, and Thomas vote? The Supreme Court will NOT intervene, for several reasons.  The first is that there is a possibility that the Ninth Circuit will take them off the hook through an en banc review.  The second is that time is simply not of the essence, as it (arguably) was in Bush v. Gore.  And, finally, it's not remotely clear what the partisan dimensions of delaying the election are.  I think it's ever more likely that Davis will pull through and/or that Bustamente will get more votes than Schwarzenegger.  So even if one assumes a pure attitudinalist model of the most vulgar kind (that seemed to work all too well in BvG!), it's not clear what the result is here.  Also, R,S, and T would, I think, demonstrate their true colors, in terms of constitutional approach, and point out that what *really* explained their vote in Bv.G is Article 2, which is not in play in California. sandy Howard Gillman USC