Another Recall Suit
U.S. District Judge Barry Moskowitz has just struck down Section 11382 of the California Election Code, which requires voters to vote “yes” or “no” on the recall in order to have their votes counted as to the replacement candidate (hat tip: Daniel Weintraub). This sounds like a Really Important Rule for Elections (RIRE). Don’t you sleep better at night knowing that your Right To Vote is so important that you can’t even deprive yourself of it by choosing not to vote? I know that I do.
Judge Moskowitz had this to say of his ruling:
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,” said U.S. District Judge Barry Moskowitz.
I don’t disagree with the holding on the merits, but this lofty language about voters’ “paramount interests” seems a bit over the top. Judge Xrlq would probably have dismissed the case entirely for lack of standing. Barring that, however, here’s what Judge Xrlq would have written, instead:
This case, which was brought by two bored law professors from San Diego, is uncommonly silly. Then again, as two other law professors have aptly pointed out, the U.S. Supreme Court’s equally silly decision in Buckley v. American Constitutional Law Foundation Inc., 525 U.S. 182 (1999) doesn’t give me much wiggle room. So for now, I’m going to throw these two bored law professor-plaintiffs a bone, and hope to God the Supreme Court overturns the silly little ruling that compels today’s silly little ruling.
Justene Adamec thinks today’s ruling won’t really matter. Daniel Weintraub agrees:
If someone is out there who is dying to skip the recall question but vote on the replacement, please call me. I want to know more about who that would be and why they would want to do it.
I agree with Weintraub’s argument, as far as it goes. I would not be surprised at all, however, if a significant number of voters did in fact end up skipping Question 1 while voting on Question 2, for reasons having nothing to do with the “paramount interests” of anybody except campaign organizers.
Let’s face it. Right now most of the Crats Unit is still behind Davis, but that could change. If, late in the campaign, poll numbers reach the point where Davis’s recall is a fait accompli I would not put it past campaign organizers of the leading Democrat to bus in large groups of senile, homeless, or generally stupid “voters” to help elect Dianne Feinstein, Audie Bock, Richard Riordan, or whoever the Democrat front-runner may be. These “voters” are not the sharpest knives in the drawer; in fact, they are California’s answer to the Floridian geniuses who, less than three years ago, got their “Gore” votes invalidated by voting for Buchanan instead, gently poking a barely visible dimple in the chad, or voting for a separate President on each page. Is it far fetched to suggest that these same rocket scientists may screw up their votes on Question 1, while voting for exactly who they had been told to vote for on Question 2?
Of course, you don’t have to guess which side will be systematically helped by the present court decision to allow voters to select a replacement candidate without voting on the recall. This lawsuit wasn’t brought by the McClintock For Governor campaign, and for a reason.
I didn’t think I’d find anyone who actually wanted to skip Question 1 but vote on Question 2, but I finally did.
July 29th, 2003 at 8:13 pm
If Riordan or Feinstein run AND the recall wins, you won’t need stupid voters bussed in to have Feinstein or Riordan win. I think Feinstein takes the election no matter what rules we play by if she chooses to run. I think Riordan hands the election to Davis because he looks like he’s just taking back power.
July 29th, 2003 at 10:50 pm
But there’s the defensive manuever argument as well. Remember that Davis only has 25% of the people voicing support for him, but only 50% want to recall.
Where do this other 25% go? My guess is some of them don’t have a preference or can’t make their mind on election day. They may skip the issue and “vote defensively” on the second question, for governor. They will vote for someone moderate so that some far-wing person like McClintock or Camejo doesn’t become governor.
Some people will be surprised about how many people will do that. I would actually expect a statistically significant percentage of people to do that, maybe about the same amount of people as voted for Camejo last time around.
July 30th, 2003 at 9:11 am
An interesting argument, but I’m not sure I buy it. I don’t see any danger of Camejo winning the recall election. As to McClintock, I don’t necessarily see him as the favorite candidate of the average, MOR voter, but I also don’t see that kind of voter losing much sleep over the possibility that he might win. The only group motivated enough to cast “defensive” votes against him are the ultrapartisan, True Believer Democrats who will also vote “no” on the recall - unless they despite Davis enough to vote “yes” instead.
I’m still at a loss to come up with any coherent reason why any voter, other than a complete and total flake, would make a deliberate choice to leave Question 1 blank but cast a valid vote on Question 2. I also question whether the two bored law professors who brought this case would have wanted to vote that way themselves. That is why I think the case should have been dismissed for lack of standing.
July 30th, 2003 at 11:44 am
XRLQ - that would just postpone the question until after the election when someone would find a voter who had, or claimed to have, voted that way, and sued. For pragmatic reasons, I think it’s better to have the issue cleared - regardless of what the decision is - before the election instead of afterwards.
July 30th, 2003 at 1:24 pm
I haven’t read the case yet, but my understanding is that it was decided on First Amendment grounds, and was not on based on a theory that voters have a “fundamental right” to be sloppy, careless boobs. Thus, a plaintiff who, after the election, alleged he had been too stupid, lazy or baked to answer Question 1 would not have standing to challenge the requirement. Only the principled plaintiff who had voted that way intentionally to make some bizarre political statement, would. That plaintiff - if he exists - would do well to come forward now, to have the issue decided before the election, so that he will know in advance whether or not he can do this without disenfranchising himself.
July 30th, 2003 at 4:11 pm
Bizarrely, an article in today’s LA Opinion says that one of the lawyers who brought the case claims that between 4 and 8% of voters in legislative recalls leave the recall blank and vote in the contingent election:
July 30th, 2003 at 4:20 pm
Unclear on the concept
California Insider, Justene Adamec, and XRLQ have all put forward the same thought on yesterday’s court ruling that votes on the contingent election must be counted even if the voter doesn’t vote in the recall: it won’t change anything, and why would a…
July 30th, 2003 at 7:45 pm
So did the San Francisco Chronicle in their article of the ruling.
Maybe I’m deluded, but I really do think that there are a few principled people who are disgusted enough with the whole thing so as not to cast a vote on the question, but protect themselves so that some right winger doesn’t get in office. I know a few of them.