When it comes to political chicanery we have learned to expect the worst from Gray Davis. The governor and his functionaries have launched a flurry of lawsuits aimed at stopping the recall election. Most of the attention has been focused on two cases, the effort to invalidate the petition process that placed the question on the ballot and Lt. Governor Cruz Bustamante's machinations to install himself as Davis's successor if the governor is recalled. But the decision that may have the largest impact on the October 7 election came and went with scarcely a whimper of protest from the major players in this drama. The silence is deafening.
The recall ballot will comprise two questions. The first is whether or not to recall Gray Davis. The second consists of choosing a successor should the governor be recalled. Federal district court Judge Barry Moskowitz struck down a particular element of this process on July 29. Section 11382 of the California Elections code states, "No vote cast in the recall election shall be counted for any candidate unless the voter also voted for or against the recall of the officer sought to be recalled." In declaring that this section violated the United States Constitution, Moskowitz declared that "section 11382 substantially burdens the right of citizens of California to vote on a successor governor in the event of a recall by conditioning the counting of that vote on whether the voter cast a ballot on the question of recall."
The lawsuit was brought by a husband and wife duo of law professors. Shaun Martin is a professor at the University of San Diego and Sandy Rierson is at the Thomas Jefferson School of Law. Martin, a former law clerk to Stephen Reinhardt, who was Chairman of the California Democrat Party before his appointment by President Carter to the Ninth Circuit Court of Appeals, declared the ruling a victory for the voters of California, whether they decide to vote yes, no, or abstain. Martin's self-proclaimed motivation was to accommodate voters "alienated" by the recall process to retain their vote in choosing a successor. So far, this seems straightforward. After all, shouldn't every vote count?
According to press reports, recall backer Phil Paule, Director of Rescue California Recall Gray Davis, hailed the decision as a "victory for the process." Presumably, the recall supporters are focused on the lawsuits aimed at derailing the election and view any decision that does not halt the process as a victory. For their part, recall opponents like Peter Rayone, of the cryptically named group Californians Against the Costly Recall, claimed the decision further confuses an already confusing process.
Before declaring this a victory for the recall backers, however, we should take note of what Gray Davis had to say about the ruling. We should do so for two reasons. First, he is the prey—the self-proclaimed "Bengal tiger"—in the biggest political game hunt in the state's history. The senses of the hunted are the keenest. Second, he is an adroit and fierce political combatant. While he has proven his incompetence as the Golden State's Chief Executive, he is eminently skilled at electioneering, having won five state-wide elections. Therefore, his opinion about the decision merits close attention as someone with a demonstrated interest and skill in such matters. Ask Richard Riordan, Bill Simon, Jane Harmon, Al Checchi and a host of others who have been defeated by his adroit election tactics. What say you Governor Davis?
Lo and behold, contrary to recall opponents—his so-called allies—Davis liked the Moskowitz ruling. According to an Associated Press report, Davis saw the decision "as a positive sign for me. People can now vote yes or no or skip it completely and go on to the next issue." This is an odd statement on its face. How does the governor benefit from a decision that allows voters more freedom in choosing his successor? The answer is the second part of his statement: "yes or no or skip it completely."
We have argued for some time that it has been a mistake to count Gray Davis out before the battle is over. This recent federal court ruling has the potential to make it even more difficult, literally, to count the governor out of office. Here's how.
Section 11384 of the election code, which is still intact, states, "If a majority of the votes in a recall proposal are 'Yes,' the officer sought to be recalled shall be removed from office upon qualification of his successor." Before Moskowitz's decision, the only valid ballots in a recall race would be those that made a choice in the first "Yes or No" question. Therefore, the issue of a majority in such an election is straightforward. If "Yes" beats "No" in a two-part choice, by the laws of mathematics, the "Yes" votes would constitute a majority. However, by allowing ballots to remain valid even if a choice was not made on the original "Yes or No" question, Justice Moskowitz has perhaps introduced a third category—"Abstain."
A possible outcome on October 7 could be a plurality victory of "Yes" over "No" whereby "Yes" votes do not constitute a majority of all votes, when the ballots of those that "Abstained" are included. Consider the following scenario. Recent polling data suggest that in a straight "Yes or No" question, 51 percent of the electorate would choose to recall the governor. For the sake of argument, let us suppose that on election night, "Yes" beats "No" by a tally of 51 to 49 percent. As to the number of abstentions, estimates of recent recall elections in local races peg that figure somewhere between 4 to 8 percent. Let's pick the middle of the range and assume that the number of abstentions on election night will be 6 percent. Next, let us put the abstentions in the total pool of votes and calculate the relative percentages. The new figures would be as follows: Yes (48 percent); No (46 percent); and Abstain (6 percent).
All of this to the contrary, the plain language of section 11384 clearly indicates that a "majority" refers to a majority of the Yes/No votes cast on the "recall proposal." Judge Moskowitz attempted to address this question in his ruling, although his answer left the door open for an aggressive Davis to challenge the legality and legitimacy of an outcome similar to that described above. One can easily imagine a friendly state court judge holding that, in light of Judge Moskowitz's ruling, a majority of all voters in the recall election did not choose to recall the governor.
Secretary of State Kevin Shelley has said that his office will not appeal the Moskowitz ruling and is instructing voting clerks in the 58 counties to tally ballots according to the federal court decision. If an appeal is not made and this decision stands, we could be in for one wild ride come October. Floridians may think they have a lock on the reputation as America's biggest political basket case. One has the sinking feeling that we in the Golden State are about to teach our assuming brother to the east that Californians always lead the way.