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Saturday, July 12, 2003


The Recall Loophole

There is a legal loophole by which Gray Davis can avoid a recall election and still remain governor.

Here's how it works:

  • Davis resigns before sufficient signatures for the recall election are officially certified to the Secretary of State; the recall is instantly over, since the object of the recall is no longer in office.
  • Lt. Governor Bustamante assumes the governorship.
  • Bustamante appoints Davis to the now-vacant office of Lt. Governor. (Davis is eligible since he previously only served one term as Lt. Governor and hence isn't term-limited out.)
  • The Democrat-dominated State Legislature either confirms Davis by a majority vote of both houses, or it fails (by a majority vote of both houses) to reject Davis within 90 days of his appointment. In either case Davis becomes the new Lt. Governor, as per Article V, Section 5 of the California Constitution.
  • Bustamante then resigns as governor.
  • Lt. Governor Davis assumes the governorship.
  • Davis appoints Bustamante to the now-vacant office of Lt. Governor.
  • The Democrat-dominated State Legislature either confirms Bustamante by a majority vote of both houses, or it fails (by a majority vote of both houses) to reject Bustamante within 90 days of his appointment. In either case Bustamante becomes the new Lt. Governor.
  • If a new recall drive against Davis commences, and it appears headed for the ballot, repeat the above procedure.
Of course there are a few minor problems with the above plan:
  • Bustamante may be a tad reluctant to resign once he achieves his ambition of becoming governor.
  • The Democrats in the State Legislature are not big fans of Gray Davis, and they may be a tad reluctant to participate in the farce.
  • The State Supreme Court could rule that when Davis again became governor, the old recall petitions regained their validity.
  • The citizens of California could lynch Davis and Bustamante.


Will Gray Davis resign?

On the one hand the idea seems inconceivable. Davis has spent his entire life climbing the political ladder, finally reaching the position of Governor, with all the power and patronage that position offers to an unscrupulous politician. At one time he harbored serious hopes for the Presidency (as does every California governor). What meaning would Davis' life have left if his political career was to be shattered?

On the other hand, the political pressures for Davis to resign may become overwhelming. There will be a recall; the only remaining question is when, and even that is looking more and more like a special election at the end of 2003. If the Democrats' private polls indicate that Davis is toast, they will do whatever it takes to jettison him rather than risk having a Republican replace him.

The rumors and the media drumbeat have already started. If Davis is going to resign, he has to do it within the next week or two, before enough valid signatures are certified to the Secretary of State to trigger the recall election. After that, a special election must be held anyway, so a resignation would be pointless.

Article II of the California Constitution states:

SEC. 15. (a) An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.
Exactly what constitutes certification, and when is the "date of certification of sufficient signatures"? Article II, SEC. 14. (c) states:

The Secretary of State shall maintain a continuous count of the signatures certified to that office.
Furthermore, Section 11104 of the California Elections Code specifies that:

11104. (a) The elections official, 30 days after a recall has been initiated and every 30 days thereafter, or more frequently at the discretion of the elections official, shall report to the Secretary of State all of the following:
... (3) The number of valid signatures, verified pursuant to subdivision (b), submitted during the previous reporting period, and of valid signatures verified during the current reporting period.

Each county is going to be forwarding its counts of valid signatures to the Secretary of State, and in most cases that will occur as quickly as possible. If there are enough valid signatures to qualify the recall through sampling procedures, rather than a complete count, if won't take the counties very long to process the petitions.

In my opinion, the California Constitution is quite clear: As soon as enough valid signatures are reported by the counties to the Secretary of State, that becomes the "date of certification". Most likely it will be July 23rd, five days after the end of the monthly reporting period. After that, a recall election must be held.

Davis will deny right up until the last possible second that he would ever even consider the possibility of resignation. But then I can easily envision him doing an instant flip-flop, declaring that he will make the ultimate self-sacrifice in order to spare California the $30 million cost of a special election at a time of horrible budget problems. Davis can play the martyrdom card, and declare that he won't let sore-loser/ambitious Republicans get away with plunging the state into a political crisis when everyone should instead be focused on passing a budget.

That would end the recall and hand the governorship to Lt. Governor Bustamante. Democrats would remain in control, and Davis would at least be spared the ignomy of becoming the first governor in California history to be recalled.

Would Bustamante be any better a governor than Davis? Who knows?

But at least we'd be rid of Davis. Regardless of who his successor might be, accomplishing that is well worth the risk.

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