Judge rejects part of recall law

Judge rejects part of recall law
Ruling allows vote for new governor without vote for recall

Harriet Chiang, Chronicle Legal Affairs Writer Wednesday, July 30, 2003


California's unprecedented recall election took yet another turn Tuesday when a federal judge struck down a state law requiring voters to take part in the recall vote if they want to cast a ballot for a new governor.

U.S. District Judge Barry Moskowitz of San Diego ruled that voters have a right to cast ballots on a successor to Gov. Gray Davis even if they do not vote on whether he should be recalled.

Moskowitz rejected the state's argument that chaos will result unless election officials can ensure that a majority of those picking a new governor cast a ballot in favor of the recall. He concluded that the law is unconstitutional because it places an undue burden on voters.

"What is at stake is the right of a voter to decide who shall succeed the governor, if recalled," Moskowitz said in his 16-page decision. "Every voter, whether they voted for or against that recall, has a paramount interest in choosing the person who will govern them."


According to the disputed California law, which dates back to 1911, voters would have to vote either for or against a recall of Davis. Only then would they be able to vote for a successor.


He said that in recall elections involving local officials, as many as 8 percent of voters have been known not to cast ballots on the recall and yet vote on a successor. "That's a huge number when you think the ultimate successor may have only 20 percent of the vote," Martin said.


http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/07/30/RECALL.TMP

Less of a voter turn out to the polls, and the Dems if they get on it will have a simple majority, and the issue will die in Oct

How many people who want Davis recalled will abstain in the recall voted but vote for a successor? Probably not many. On the other hand, there may be some people who are opposed to the racall, but don't like Davis either. Those probably would have voted 'no' on the recall. Now they have the option to skip this vote and still vote for the successor. If just a small percentage of voters do this, Davis is toast.

It is estimated that 20% of the vote will take the governor spot if the recall goes thru. CA also tends to have very low voter turnout in the fall, non president, special circumstances type elections.