by John M. Curtis
(310) 204-8700

Copyright August 4, 2003
All Rights Reserved.

aking his best legal move to delay the impending Oct. 7 recall, Gov. Gray Davis asked the California Supreme Court to move the election to March 2, the date of the state's presidential primary. Strategists fear that a special election would attract a low voter turnout, with too many pro-recall supporters rushing to the polls. Yet Davis' attorneys argued with straight faces that obsolete punch-card voting machines compromises the recall, something California voters have lived with for nearly 40 years. According to Davis' attorneys, holding the recall election in March would save taxpayers millions, enabling voters better access to polling places. In a real stretch, Davis lawyers contended that not listing the governor as a replacement candidate violates voters' equal protection rights. Davis isn't named as a replacement because he's already listed separately on the ballot for a yes or no vote.

      Recall supporters expected legal challenges, especially since the Secretary of State certified 1.7 million signatures and ordered the Oct. 7 recall. Davis already asked the Supreme Court to decertify petitions, claiming signatures were obtained fraudulently by out of state residents. “We want the fairest possible election and we want the most voters who can possibly have participation in the election to participate, and we want the preference of voters to be vindicated,” said Michael Kahn, one of Davis' three lawyers attempting to delay the recall. Kahn isn't concerned about disenfranchising voters, he's worried about polls showing that voters are ready to toss the governor. Kahn knows that delaying the recall violates the California constitution requiring a prompt election, already vetted by the Secretary of State's office. “This is Davis stall tactics to the inevitable,” said Phil Paule, director of Rescue California Recall Gray Davis.

      Legal strategies aside, Democrats fear that Davis could very well get bounced on Oct. 7, prompting party insiders to consider placing an alternative on the ballot before the Aug. 9 deadline. With prominent Republicans expected to run, Democrats must have a backup or face almost certain defeat. “We have a deep bench,” said U.S. Senator Barbara Boxer (D-Calif.), concerned about losing the statehouse. “If we find the (Davis) strategy not working, we should not shut the door on a consensus candidate,” creating a crack in the party unity that so far stuck with Davis. Boxer admitted that strategists are busy taking the public's pulse on the recall—so far it doesn't look good. When Davis hiked the vehicle license fee 300%, it was the last straw for voters on both sides of the aisle. Before Saturday's deadline, Democrats will have to break ranks with Davis or risk a crushing defeat on Oct. 7.

      Since the U.S. Supreme Court decided Bush vs. Gore in Dec. 2000, courts have been reluctant to interfere with elections. California's constitution clearly spells out conditions for recalls, despite the flurry of legal arguments. With the state's high court already reviewing two petitions to keep replacement candidates' names off the ballot, one to keep unrelated propositions off the ballot and another over the rules putting successor candidates on the ballot, the Supreme Court may not show much receptivity to Davis' latest request. Arguing about the evils of punch-card ballots, saving tax dollars or disenfranchising voters sounds like smokescreens, only 5 days before candidates' Aug. 9, 5 p.m. deadline. Like a “motion to dismiss,” legal strategies offer the best tactic before launching an all out media blitz. “Concerned that there's no fallback,” even liberal Sen. John Burton (D-San Francisco), expressed support for an alternative Democrat.

      Denying that U.S. Sen. Dianne Feinstein (D-Calif.) remains a viable option, her political advisor Kam Kuwata played his cards close to the vest. “We are not setting up a compaign. We have not polled. We have no organizational structure. Any of those kinds of things one would do to prepare, we certainly are not doing that,” said Kuwata, not giving a definite no to a Feinstein run. By Aug. 6, actor Arnold Schwarzenegger will either run or pass the baton to former Los Angeles mayor and gubernatorial candidate Richard Riordan. With either of those popular moderate Republicans, Feinstein will become Democrat's last best hope of saving the statehouse. If Schwarzenegger opts out, Riordan would be a shoe in against all other Democrats—except Feinstein. Faced with a rematch with Riordan, Davis only prays that the high court intervenes. Legal experts are divided on the eventual outcome.

      Playing his best legal cards, Davis prays the California grants a temporary reprieve before Oct. 7. Only one week after the Department of Motor Vehicles triples the vehicle license fee, voters won't show the governor much sympathy. While there are more lawsuits on the way, the California high court won't trample on the state's constitution, offering the legal means of recalling an incumbent governor. “With all these lawsuits out there, delay may be inevitable,” said professor Richard L. Hasssen, an election law expert Loyola Law School in Los Angeles, forgetting that the court hasn't yet shown much support. Unlike the U.S. constitution, the state offers no tests like “high crimes and misdemeanors” to recall a chief executive. Few Democrats like the recall, but they must face the music that voters aren't in a generous mood. If the high court turns its back, Davis has reason to sweat.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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