Baltimore Sun

Part of California recall law struck down; vote to proceed

SAN DIEGO - A federal judge struck down a portion of California's recall law yesterday, but the ruling will not stop the Oct. 7 election to remove Gov. Gray Davis. It will only change the way the balloting is done.

U.S. District Judge Barry Moskowitz said voters will be allowed to cast a ballot for a potential successor to Davis even if they do not vote on whether he should be removed from office.

Under the state law, voters could choose "yes" or "no" on whether Davis should be recalled. And only voters who cast a "yes" or a "no" could then choose a potential successor from a list on the same ballot.

Moskowitz shot down the portion of the law that said voters who did not answer the first question would not have their votes on the second question tallied. He sided with plaintiffs who said voters should be allowed to choose a Davis successor even if they didn't make a decision on the recall.

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

Deputy Attorney General Leslie R. Lopez, who argued on behalf of California's secretary of state that the law was constitutional, declined to comment. The decision of whether to appeal is up to the secretary.

"The voters of California won," said Shaun Martin, a law professor at the University of San Diego who filed the challenge along with Professor Sandra Rierson of the Thomas Jefferson School of Law. "This is the right of every voter to vote how they choose: yes, no or abstain."

The challenge brought by the legal scholars said the process unconstitutionally compels voters to choose on one matter to gain eligibility for another.

The California attorney general's office supported the law as written. "Allowing voters to abstain on the recall question would allow those with only an indirect or remote interest in this crucial question to decide who will replace a recalled officer," Lopez had argued.

Potential replacement candidates have until Aug. 9 to decide to run. Rep. Darrell Issa funded the recall drive and is the only declared Republican candidate.

A senior adviser to Arnold Schwarzenegger said Monday that the actor, a Republican activist, is leaning against running in the recall election, but no final decision has been made. He could decide by the end of the week, the adviser said, speaking on condition of anonymity.

Former Los Angeles Mayor Richard Riordan has said he will look hard at running if Schwarzenegger does not.

"If Arnold runs, I'm not running. If he doesn't run I will seriously consider it," Riordan said yesterday. He said a decision would be made soon.

Also yesterday, two California Democrats in Congress urged Sen. Dianne Feinstein to run in the recall election, shattering united party support for the governor. Feinstein strongly opposes the recall but has not ruled out running to succeed Davis. A Feinstein aide said she would have no comment.

GOP businessman Bill Simon, who lost to Davis in November, took out nominating papers yesterday that would allow him to become a candidate. He declined to say when he would decide whether to run, but said: "We're prepared to put together a big, strong campaign."

Also considering a run are state Sen. Tom McClintock and former Rep. Michael Huffington. His ex-wife, columnist Arianna Huffington, is the subject of a campaign to draft her, but she said that she would not run if her former husband does.